Haines v. Haines

• Decision Date: 06 March 1911
• Docket Number: 14325
• Citation: 98 Miss. 830,54 So. 433
• Court: Mississippi Supreme Court
• Parties: HENRY HAINES ET AL. v. CALEB HAINES ET AL

54 So. 433

98 Miss. 830

HENRY HAINES ET AL. v. CALEB HAINES ET AL

No. 14325

Supreme Court of Mississippi

March 6, 1911

APPEAL from the chancery court of Coahoma county, HON. M. E. DENTON Chancellor.

Suit by Caleb Haines et al. against Henry Haines et al.

From an adverse decree defendants appeal.

The facts are stated in the opinion of the court.

Judgment affirmed and cause remanded.

Frank Johnston, for appellant.

There are only two questions contained in the record in this cause on the present appeal, viz.:

1st. The amended bill setting up the new and independent title to the land in controversy should not have been allowed to be filed in the cause, and the plea to it should have been sustained.

2nd. The amended bill seeking to open the case for further testimony on the original bill should not have been allowed to be filed. (There is no cross appeal in this second question.)

The first proposition presents the question, whether the application of the complainant for leave to file an amended bill setting up a new and independent claim of title to the land in controversy is not res adjudicata by the decision rendered and the decree made by this court on the former appeal.

The second proposition presents the entirely separate and independent question of the right of the complainant, at this stage of the case, to have the case opened for further proof for the complainants. The court allowed it to be filed; this was error, but it was stricken out on defendant's motion by order of the court from which there is no appeal.

One other proposition for the appellant will be stated at this point, and that is, aside from the question of res adjudicata, the complainants, under the settled principles and rules of equity procedure, have no right to file the amended bill setting up a new and independent title having no reference to or connection with the case made by the original bill in this cause.

The following authorities are cited: State v. Woodruff et al., 81 Miss. 456; McDonald v. Green, 9 S. & M. 138; Miazza v. Yerger, 53 Mass. 135; Clark v Hall, 31 Miss. 520; 1 Am. and Eng Ency. Pl. and Pr 583; Moody v. Farr, 27 Miss. 788; Vanderberg v Campbell, 64 Miss. 87; Hare v. Sproul, 2 How. 772; 16 Am. and Eng. Ency. Law, p. 575; Gleddon v. Dunlap, 28 Mo. 379; Bradish v. State, 35 W. 482; Waller v. Graves, 20 Conn. 310; Parker v. Hardy, 24 Pick. (Mass.) 246; Aholtz v. Durfee, 25 Ill.App. 43; Kruger v. Merrill, 66 Wis. 28; Brunson v. Faircloth, 82 Ga. 185; Powell v. Jones, 42 Bark. (N. Y.) 24; Myers v. Riley, 36 Hun (N. Y.) 20; Gardner v. Mitchell, 6 Id. 116; Reed v. Grew, 5 Ohio 386; Hines v. Driver, 100 Ind. 319; Barrow v. State, 80 Ga. 191; Shaw v. State, 27 Texas 750 16 Am. and Eng. Ency. Law 565, 566; First Edition; Berry v. Metzler, 7 Cal. 418; Gavigan v. State, 55 Miss. 533; Wynne v. Newman, 75 Va. 817.

Brewer & Watkins and Cutrer, for appellee.

The first two assignments of error of appellants are predicated on the action of the court in allowing the amended or supplemental bill of the complainants to be filed and in not striking said bill from the files on the defendants' motion. These two assignments can easily be considered under one general head. This being true, this brief will consequently be divided into two main divisions, the first of which will take up the proposition of the power of the court below to allow the amended bill to be filed, and secondly, does the plea of appellants to said amended bill set up such matters and facts as res judicata in bar of all relief of the court on said amended bill.

Under this general head we will treat two questions: (A) The power of the court to allow the amendment after decree of the supreme court directing a decree to be entered in accordance with the opinion of the said supreme court, and (B) the amendment from the standpoint of equity pleading.

(A.) We contend that the amendment was properly allowed. Two learned chancellors passed upon it. Upon what authority did they base their action? We say on the following: Wailes v. Cooper, 25 Miss. 421; Hansard v. Gray, 46 Miss. 75; Taylor v. Wright, 54 Miss. 722; Canning Company v. Ott, 88 Miss. 771; Adams v. Saunders, 46 S. Rep. (Miss.) 960; Cunningham v. Ashley, 16 Ark. 181, 63 Am. Dec. 62; 2 Cyc. 493, 494, 498.

The above cases, most of them decisions of our own supreme court, unmistakably maintain this proposition:

The decision of a case by the supreme court with direction to enter a decree in accordance with its opinion does not, where the case is remanded, take away the power of the court below to allow amendments in the pleading, or to make such other orders in the case as the equity and rights of the case may demand, and the rules of practice in the chancery court allow, and the only effect of the supreme court is to require the court below, upon the state of the pleadings and proof remaining the same, as it was when decided in the high courts, to render the decree directed by the mandate.

(B.) Counsel for appellants contend that the court's action in allowing the amended bill to be filed was erroneous in that the amended bill is the assertion of a new and independent title wholly inconsistent with the claim of title set up and relied upon in the original bill. They cite the two Mississippi cases, Miazza v. Yerger, 53 Miss. 135, and Clark v. Hull, 31 Miss. 520. In the former case Mrs. Miazza had filed a bill to enforce a trust in certain real estate alleged to have arisen out of a certain specific contract. A demurrer was filed to the bill and sustained, then an amended bill was offered by which the complainant had framed a bill for equitable relief in regard to dower. In the latter case Clarke had sued Murphy for the recovery of certain slaves. Murphy afterwards died and the suit was revived against John T. Hull as administrator.

The suit proceeded to final judgment, and then an amendment was offered, by which it was sought to transform the suit from a proceeding in which it was sought to render the estate of Murphy, in the hands of Hull as his representative, liable for the complainant's demand into the suit, by which Hull would be charged in his personal capacity. The instant case is not of the character of the two Mississippi cases cited above, but is rather a bill by appellees against appellants asking the whole of the property, and if not given the whole that they be given one-half of it. In addition to the many authorities cited in paragraph "A" of this brief, showing the numerous cases in which this court and other courts have allowed amendments to be filed, we wish to call the court's attention to our statute which allows all amendments in pleadings and proceedings upon liberal terms to prevent delay and injuries. Section 593, Code of 1906.

We maintain, and we think with much consistency and in a line with the adjudications of this court, that this amendment does not in any sense change the cause of action, for we earnestly contend that the relief sought by the amended bill could have been granted upon the prayer for general relief in the original bill. We say this because it is the uniform rule of this court that under a prayer for general relief all relief may be granted not inconsistent with the scope of the bill, although the specific relief granted by the court is not prayed for. An examination of the following authorities fully substantiate this proposition, and here surely under a prayer for general relief asking for all the property the complainants in the court below (appellees here) were entitled under the proof to a decree of their mother's half interest in the property: Barksdale v. Swan, 69 Miss. 907; Wise v. Hyatt, 68 Miss. 714; Burnet v. Boyd, 60 Miss. 627; Byrne v. Taylor, 46 Miss. 95; Garrett v. Nichlos, 56 Miss. 622; Hardis v. Bulger, 86 Miss. 577; Bell v. Clark, 71 Miss. 603; Dodge v. Evans, 43 Miss. 570; Moore v. Wilkerson, 47 Miss. 633; Hartman v. Moore, 79 Miss. 625; Hart v. Patter, 80 Miss. 791; Moore v. Crump, 84 Miss. 612; Chicago v. Bank, 134 U.S. 276, 38, 33 L.Ed. 900.

We understand the rule of equity pleading to be that an amended bill must not be repugnant to the original, nor may it present an entirely new and essentially different case entirely changing the purpose of the suit, but we only ask for one-half of the whole originally prayed for.

We also call the court's attention to one or two other cases in which amendments have been allowed: Carey v. Fulmer, 74 Miss. 729; Hart v. Potter, 80 Miss. 796; Tishomingo Institution v. Allen, 76 Miss. 114; Field v. Banking Company, 77 Miss. 180.

The appellants insist that the matters and facts set up in their plea to the amended bill herein are res adjudicata having been passed upon by this court, and, consequently, the appellees cannot be heard on their amended bill. It is true that a motion was made in the supreme court to modify the decree so as to allow appellees to set up their claim to an undivided one-half interest in and to the property in controversy, and that the motion was not sustained by the court. This was done under the above authorities holding that amendments are not to be made in the supreme court, as that is not the proper place to allow amendments. Wailes v Cooper, 25 Miss. 421; Weir v. Jones, 84 Miss. 810, and Perkins v. Watson, 92 Miss. 452. In which latter case the court very properly said that the motion to amend should be remanded and was referred to the court below for proper disposition. We understand, too, that before the plea of res adjudicata can be maintained that there must be a decree on the merits. Baird v. Bardwell, 60 Miss. 164. Such a decree has never been rendered in this case, and while that is true this court as well as the lower court has power to render any such judgment or decree,...