Hibernia Bank & Trust Co. v. Beech

• Decision Date: 20 May 1918
• Citation: 78 So. 609,117 Miss. 668
• Parties: HIBERNIA BANK & TRUST CO. v. BEECH
• Court: Mississippi Supreme Court

78 So. 609

117 Miss. 668

HIBERNIA BANK & TRUST CO. v. BEECH

Supreme Court of Mississippi

May 20, 1918

March 1918

Division B

APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.

Suit in ejectment by the Hibernia Bank & Trust Company against William Beech. From a decree denying plaintiff motion to dismiss without prejudice, and sustaining defendants' motion to dismiss because plaintiff had failed to answer interrogatories, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Salter & Hathorn, for appellants.

In the outset we wish to say that if this were an ordinary dismissal and was such a one as to constitute a dismissal without prejudice, we would have nothing to complain of. However, the court in passing on the legal effect of a dismissal, under section 1938, Code 1906 (Hemingway's Code, section 1598) has expressly held that such a dismissal "is an adjudication of the merits, and bars a subsequent action. "See Cedar Rapids National Bank v. Murray, 98 Miss. 123, 53 So. 393. Both under the statute law of the state (sec. 802, Code 1906, sec. 590, Hemingway's Code), and under the common law, appellant was entitled to a nonsuit. The Code provides that appellant is entitled to a nonsuit at any time before the jury actually retires to consider of its verdict, and this position is strongly upheld in the case of G. & S. I. R. Co. v. Williams, 109 Miss 549, 68 So. 776.

Under the common-law rule, as amended, Schaffer v. Deeming Mfg. Co., 108 Miss. 257, 66 So. 736, plaintiff is entitled to a nonsuit at any time previous to the pronouncement of judgment by the court; the court holding in that case that "a request for peremptory instruction presents an issue of law to be tried by the judge without the intervention of a jury, and therefore, comes within the rule of common law, hereinbefore set forth, which prevents a nonsuit after the judge has pronounced his judgment."

Under the common-law rule appellant may nonsuit at any time before judgment, but as suggested by Chief Justice SMITH, in Schaffer v. Deeming, supra, the uncertainty as to what this rule at common law really is, probably brought about the enactment of section 802, Code 1906, which provides that a plaintiff cannot suffer nonsuit unless he do so before the jury retire to consider its verdict. So that we are still under the common-law rule, except that it is now fixed by statute that no nonsuit can be had after the jury retires.

In the case at bar appellant moved the court for a nonsuit, and this motion was before the court prior to the time when the court determined the issue against appellant.

When appellee moved the court to dismiss, this brought before the court an issue to be determined. The issue being whether or not appellant had failed to answer appellee's interrogatories within a reasonable time. If the court should determine the issue in favor of appellee's contention, the motion would be sustained and appellant's suit dismissed. If the court should determine the issue adverse to appellee's contention the motion would, of course, have been overruled. Before this issue had ever been determined by the court, appellant asked for a nonsuit, and until the court should determine the issue appellant was entitled to its nonsuit. This case had not even been finally submitted to the court when nonsuit was asked for. 9 R. C. L., page 196, paragraph 9, in defining what constitutes final submission on trial by the court says: "When the case is tried by the court there is a final submission when the cause has been argued and the court has found the facts and stated its conclusions of law, or when a decision has been agreed upon."

And in its treatise on nonsuit, same volume and page, R. C. L. say that until final submission to the court, plaintiff is entitled to nonsuit as a matter of right. In the instant case no testimony had been taken on the motion to dismiss, nor had it been argued, nor even submitted to the court, but both the motion to dismiss and the motion to nonsuit, as shown by the judgment appealed from, R., page 9 "were heard and considered simultaneously by the court."

"The granting of a nonsuit was a matter addressed to the discretion of the trial judge." But in passing on suggestion of error in the same case, 108 Miss. 429, 69 So. 215, the court withdrew the above expression and stated the law in this state to be that "plaintiff, as a matter of right, may suffer a voluntary nonsuit at any time before the jury retire to consider their verdict, and the trial court has no discretion in the premises."

This same view was re-affirmed in the case of Edwards v. Y. & M. V. R. R., 73 So. 789. The same rule applies where a cause is submitted to the court to be tried, and until the court announces its finding, appellant has a right to suffer a voluntary nonsuit. See Van Watenen v. Chladlek, Ann. Cas. 1913D, note on page 527, and R. C. L., supra.

On a trial of this case on its merits when it should appear that plaintiff had parted with title, the most that plaintiff would have suffered, under section 1841, Code 1906, Hemingway's Code, sec. 1474, would have been a nonsuit.

We respectfully submit that the judgment of the lower court should be reversed and judgment should be entered here for appellant, sustaining its motion for a nonsuit.

J. J. Massey and Tally & Mayson, for appellee.

It will be observed by section 1938 of the Code (Hemingway's Code, sec. 598), prescribes the only rule by which a party to a suit can obtain any testimony or information out of his adversary, when such adversary is a nonresident of the state. Foreign corporations are permitted to do business in the state only on such terms and conditions as the laws of the state prescribe. When the appellant in this case refused to answer the interrogatories propounded to it, which the appellee had a right to propound, it was then in contempt of court and before it could be heard on any motion, it was necessary that it purge itself of the contempt.

"One in contempt may be denied favors and the privilege of presenting a defense, filing pleadings or motions or taking any other steps in a cause. His pleading may be stricken from the files." 9 Cyc., p. 551. "A party in contempt can neither file a pleading nor make a motion to dismiss until discharged from such contempt by order of court." Gant v. Gant (Tenn.), 53 A. D. 736.

When the interrogatories in question were filed and a copy given the attorneys of the appellant then it was under as great an obligation to answer the same as it would have been to produce any document or to conform to any other rule of the court during the progress of the trial of the case. The appellant in this case would not be entitled to the consideration that a resident party would be. The section in question provides the only rule, by which obedience to its mandate can be enforced. Not so with a resident party. Such party could be fined if an individual, or if a corporation, its property distrained to enforce obedience to the court's order. To permit, under that state of the case, the appellant to treat with contempt process of the court, for the interrogatories propounded was a process of the court, would be violative of the public policy of the state.

A noncompliance with section 935, Code of 1906, Hemingway's Code, 4111, requiring a foreign corporation to file its charter of incorporation with the secretary of state will preclude it from enforcing, in courts of this state, the collection...