Harrison v. Illinois Cent. R. Co.

• Decision Date: 04 January 1954
• Docket Number: No. 39039,39039
• Citation: 69 So.2d 218,219 Miss. 401
• Parties: HARRISON et al. v. ILLINOIS CENT. R. CO. et al.
• Court: Mississippi Supreme Court

Page 218

69 So.2d 218

219 Miss. 401

HARRISON et al. v. ILLINOIS CENT. R. CO. et al.

No. 39039.

Supreme Court of Mississippi.

Jan. 4, 1954.

Harold H. Cox, Jackson, for appellants.

Byrd, Wise & Smith, Jackson, for appellee.

HOLMES, Justice.

This is an appeal from a judgment of the Circuit Court of Scott County sustaining a plea in abatement and dismissing the suit of the appellants upon the ground that a suit previously filed by the appellants as plaintiffs was pending in the Circuit Court of the First Judicial District of Hinds County involving the appellee, Illinois Central Railroad Company, as defendant, and involving the same plaintiffs and the same cause of action.

Prior to the hearing of the plea in abatement, the appellants undertook to enter a nonsuit in vacation in the Hinds County suit, and it is their contention that the nonsuit was validly entered and the cause dismissed, and that, therefore, the Circuit Court of Scott County was in error in holding the cause to be a pending suit and in sustaining the plea in abatement.

The appeal brings under review the question of the effectiveness or ineffectiveness of the nonsuit claimed by the appellants to have been entered in the Hinds County suit.

The chronological events out of which the question arises are as follows: On July 3, 1952, the appellants, as plaintiffs, filed their declaration in the Circuit Court of the First Judicial District of Hinds County against the Illinois Central Railroad Company as defendant, demanding damages in the total sum of $4,873.61, alleging that a truck and semi-lowboy trailer of the plaintiffs which had become stalled on one of the tracks of the defendant railroad company were damaged and destroyed as the result of the negligence of the defendant railroad company in the operation of one of its trains. The defendant railroad company answered, denying the charges of negligence and asserting a counterclaim against the plaintiffs in the sum of $1,148.58, alleging that the plaintiffs had negligently caused said truck and semi-lowboy trailer to be on one of the tracks of the defendant and that the train, without fault on the part of the servants of the defendant railroad company, had run into and against said equipment and had caused it to be knocked against one of the block signals of the defendant railroad company, damaging and demolishing the same.

On the trial of the case in the Circuit Court of Hinds County, a peremptory instruction was granted to the plaintiffs on the counterclaim of the defendant railroad company, and the case was submitted to the jury on the claim of the plaintiffs for damages, resulting in a verdict for the defendant railroad company. Judgment was accordingly entered for the plaintiffs on the railroad company's counterclaim and for the defendant in accordance with the jury's verdict for the defendant on the claim of the plaintiffs for damages. The plaintiffs filed a motion for a new trial and on November 21, 1952, the court entered an order adjudging that the jury's verdict for the defendant and the judgment of the court thereon be set aside and that the plaintiffs be granted 'a new trial of this suit against the defendant, Illionis Central Railroad Company, the same in all things as if this suit had never been tried with the result stated.' This order of the court was duly excepted to by the defendant railroad company and its bill of exceptions thereto was approved and allowed by the court on December 3, 1952. Thereafter on January 17, 1953, these same plaintiffs, who are the appellants here, filed their declaration in the Circuit Court of Scott County, naming as defendants thereto the Illinois Central Railroad Company and H. G. Vinson, the latter being the enginerr engaged in the operation of the train at the time of the accident. This declaration was filed on the same cause of action as that involved in the Hinds County suit. The only difference in the two suits is that in the Hinds County suit the railroad company alone was named as defendant, whereas in the Scott County suit, H. G. Vinson, the Engineer, was joined, and in the Scott County suit, the amount of the damages claimed as the result of alleged negligence was greater than that demanded in the Hinds County suit. On February 3, 1953, the attorney for the plaintiffs made the following notation on the declaration in the Hinds County suit: 'This case is non-suited without prejudice to the right of plaintiffs to bring new suit for their right of action herein.' This notation was signed by the attorney for the plaintiffs and was attested by the clerk. On February 17, 1953, the defendants in the Scott County suit filed their answer and plea in abatement. On February 19, 1953, the Circuit Court of Hinds County, on motion of the defendant, Illinois Central Railroad Company, entered an order adjudging the attempted nonsuit in the Hinds County proceedings to be a nullity and setting the cause for trial in that court on March 11, 1953, 'or at such time thereafter as may be designated by this court.' At the March 1953 term of the Circuit Court of Scott County, a hearing was had on the plea in abatement filed in the cause in that court, resulting in a judgment sustaining the plea in abatement and dismissing the suit in that court.

Appellants claim that they had the unqualified right to enter the nonsuit by virtue of Sec. 1539, Miss.Code of 1942, which, in its applicable parts, is as follows: 'The plaintiff may suffer a nonsuit, or dismiss a cause, before the clerk in vacation, on paying all costs that have accrued; and the clerk shall enter on the declaration the disposition made of the same, with the date. * * * ' No point is made that this statute was not complied with in so far as concerns its requirements for the exercise of the right to enter a nonsuit.

It is the position of the appellants that since the court set aside the judgment in favor of the defendant railroad company and granted the appellants a new trial of their suit against the said defendant, the cause stood as though it had never been tried insofar as the rights of the appellants on their original demand were concerned.

The vital question, therefore, is whether the appellants had the right to enter the nonsuit at the time they undertook to do so. In construing Sec. 1538 of the Mississippi Code of 1942, providing that every plaintiff desiring to suffer a nonsuit on trial shall do so before the jury retires to consider its verdict, we have held that before the jury retires to consider its verdict, or before the case has been submitted to the court, the right to enter a nonsuit exists, provided there has not been a change in the status and rights of the parties after the bringing of the suit that would be destructive of the rights of the defendant. No difference in principle is seen with respect to the rights of a party to suffer a nonsuit under Sec. 1539 of the Mississippi Code of 1942.

In the case of Adams, State Revenue Agent v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 436, this Court, in discussing the rule with respect to the right of a party to suffer a nonsuit, said: 'The only limitation of the rule is applied to cases wherein the defendant has secured some right by the filing of the bill which would be destroyed by the dismissal of the bill. Even then it is not a matter of discretion with the chancellor, it is a right of the defendant which controls. The discretion of the court may be exercised when the time has passed for the plaintiff or complainant to dismiss as a matter of right; before that time there is no discretion. It seems that the right to dismiss without prejudice did not exist in common-law courts...