Herron v. Herron, 16671.
| Decision Date | 23 May 1958 |
| Docket Number | No. 16671.,16671. |
| Citation | 255 F.2d 589 |
| Parties | Sam B. HERRON, Sr. v. V. A. HERRON, Jr. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Phil Stone, James Stone & Sons, Oxford, Miss., Joel P. Walker, Jr., Chatham & Walker, Hernando, Miss., for appellant.
Chester L. Sumners, Smallwood, Sumners & Hickman, Oxford, Miss., James McClure, Sr., McClure, Fant & McClure, Sardis, Miss., for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
This is an appeal from the United States District Court from the Northern District of Mississippi dismissing appellant's complaint. Jurisdiction is based on diversity of citizenship.
(2) the object of the motion was to try the main issue in the case and the effect of the dismissal was a decision on the merits, and
(3) the complainant had no notice of the hearing and no opportunity to meet the issues?
The question answers itself. The complainant never had his day in court. There was reversible error.
Suit was to establish a trust. Sam Herron, Sr., appellant, filed a complaint against his nephew, V. A. Herron, Jr., alleging that for many years the defendant operated a store in Oakland, Yalobusha County, Mississippi, as trustee for the heirs of Mrs. B. M. Herron. The complaint prayed that: (1) a trust be decreed; (2) the defendant produce books and records pertaining to the operation of the store, for inspection and copying; and, (3) a master be appointed to take an accounting of the operation of the store for the period from 1932 to the date of the suit.
Mrs. Herron died in 1925. There was no administration of her estate. Her sole heirs were four children — Sam, his two brothers, and sister. They agreed orally to keep their inherited property intact and to operate their mother's farm and store under the name of "The B. M. Herron Estate". The store failed, but in 1932 a new store was established with the sum of $500 taken from the funds of the estate. Sam Herron alleged that the heirs agreed that the store would be operated by V. A. Herron, Jr., as trustee for the owners of "The B. M. Herron Estate". Over the years the $500 increased and multiplied until, with other causes, it produced a first-class family feud.
The pleadings in the district court proliferated to a point characteristic of litigated family feuds. That is the point where a profusion of pleadings confounds the lawyers and confuses the courts.
Following a series of motions by both sides, and an amended complaint, the defendant filed an answer denying that there was any trust and setting up the following defenses: (1) lack of jurisdiction; (2) the statutes of limitations for three, six, and ten years; (3) laches; (4) estoppel; and (5) res judicata. November 30, 1956, appellant filed a motion for production and inspection of documents, with supporting affidavits, and served notice that the motion would be called for hearing December 14, 1956. December 3, 1956, appellee filed a motion invoking the statute of frauds and also moved for a preliminary hearing on the special pleas and defenses of statute of limitations, statute of frauds, laches, estoppel and res judicata. The court was not asked to fix the date of such hearing. The hearing on appellant's motion was continued by consent to January 7, 1957. On that day, appellee filed a supplemental answer and specific "plea for abatement", asking that the complaint be dismissed, because of the pendency of proceedings on the same issue (but with conflicting allegations) in the Chancery Court of Yalobusha County between Sam Herron, appellant, and V. A. Herron, Sr.
The matter came on for hearing January 7, 1957 on appellant's motion for production and inspection of defendant's books. Appellant received a rude surprise. His motion was not heard. His suit was dismissed.
The sequence of events at the hearing is unclear. This is what happened — more or less. Counsel for appellee made a long preliminary statement giving his view of the case, referring to his special defenses and pleas, including the specific plea of abatement, and urging his right to examine the complainant, especially to make proof of the specific plea of abatement and of his defenses which he regarded as pleas of abatement. Appellant objected that: he had not had five days notice, as required under Rule 6(d), 28 U.S. C.A.; appellee had not obtained any order allowing the filing; he was taken by surprise for he had not expected complainant to be called as a witness, and the complainant should not be compelled to testify without notice at a hearing called for another purpose. Appellant objected also to the appellee's motion of December 3, on the ground that it did not conform to the Federal Rules. If intended as a motion for a summary judgment, appellant had no notice; the motion did not allege that there was no issue of fact, and, it is manifest that the complaint and answer raise many material issues of fact. Appellee answered: (1) his pleas and special defenses referred only to matters of record; (2) he had the right to examine complainant to show that there was no basis for the complainant's motion; (3) the plea raising the special defenses of the statute of frauds, statute of limitations, res judicata, and laches was "in no sense a motion for a summary judgment, but * * * pleas in abatement". Counsel for appellant then stated that he had no objection to the examination of his client, if it were limited to matters relating to his motion for production of books. He insisted, however, that (1) he should be protected against surprise and that (2) defendant's pleas amounted to a motion for a summary judgment.
Here, the trial judge observed that the appellee's plea was "a motion to dismiss, as I understand, on various grounds, the statute of limitations, the plea of res judicata, laches, now they all stand strictly on the record". Counsel for appellee stated that as to the specific plea of abatement (in regard to the Chancery proceedings), "which actually has not been filed", the proof was a matter of record; as to the statute of limitations, it was necessary "to examine him complainant for the purpose of determining whether the likelihood of a trust ever having existed in the first instance, whether he can show the existence of such a trust". The trial judge pointed out: "That is getting into the trial of the cause on the merits". Counsel for appellee repudiated the idea: "I don't think that is the way the case shapes up * * * Before defendant is compelled to produce his books, the complainant must at least go forward with sufficient proof to indicate to this Court that there may be some basis for the claim that the trust ever existed and on that basis, we want to examine him."
The trial court persisted: "I'm trying to discuss your motion not appellant's * * * Your Statute of Limitations * * * Isn't all of that a simple hard cold question of admitted facts, according to the pleadings?" Counsel for appellee explained that he wished to question the complainant as to when he learned about the trust and when he claimed that the trust was breached. The trial judge then held: "with respect to the Statute of Limitations you appellee may examine his complainant * * * and your examination will be confined strictly to that * * * I will hold you on that motion to this particular matter". In a last gasp, counsel for complainant again objected.
The examination of Sam Herron was extensive. It was a cross-examination, not preceded by any direct testimony, going fully into the merits of the case, as to whether there was a trust. There were no other witnesses. At the conclusion of the testimony, the trial judge held that there was no trust. The Court's order was that "the cause is barred by the Statute of Limitations", on the ground that, since there was no trust, plaintiff's only action was for conversion of funds barred by the three-year Statute of Limitations, Code Miss.1942, § 729.1
The record shows that the attorneys for both parties were surprised that the hearing was determinative of the case. But it was small wonder that the attorney for complainant was surprised. His motion for production and inspection of defendant's books — the reason for the hearing — was lost in the shuffle. Instead, he found that the trial judge had decided the case on the merits, on a motion never set for a hearing. With grace and skill, counsel for appellee argues that the only surprise at the hearing was the surprise of appellant's counsel at his client's testimony.
The parties and the court never reached any agreement as to what appellee's motion was or what it was intended to do. Appellee insisted that, although he complied with the requirement of the Federal Rules in pleading the statute of limitations and other affirmative defenses in his answer and in his supplemental motion, they are "pleas in abatement" and in no sense a motion for a summary judgment. Appellant insisted that appellee's motion was one for summary judgment. The trial judge stated in his order that "the cause came on for hearing on motion of the defendant to dismiss on plea of statute of limitations".
"Pleas in abatement", as such, have been abolished. Rule 7(c). The dismissal of the complaint was based, therefore, on a motion to dismiss or a motion for summary judgment.
Under Rule 6(d) appellant was entitled to five days notice of the hearing of a motion to dismiss. Rule 6(d) is not a hard and fast rule, however, and if it is shown that a party had actual notice and time to prepare to...
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