Hutchens v. Craig

• Decision Date: 25 November 1940
• Docket Number: 34312
• Citation: 189 Miss. 772,198 So. 736
• Court: Mississippi Supreme Court
• Parties: HUTCHENS v. CRAIG, STATE AUDITOR

198 So. 736

189 Miss. 772

HUTCHENS v. CRAIG, STATE AUDITOR

No. 34312

Supreme Court of Mississippi

November 25, 1940

APPEAL from the circuit court of Hinds county, HON. J. P. ALEXANDER Judge.

Proceeding by Mrs. Kathleen P. Hutchens, executrix of the estate of A R. Hutchens, deceased, against Carl N. Craig, State Auditor revived in the name of J. M. Causey, who succeeded Carl N Craig as State Auditor, for a writ of mandamus directing auditor to issue petitioner a warrant on State Treasurer for amount allegedly owed by state to petitioner's decedent who was clerk of chancery court of Humphreys county at time of his death, wherein the defendant filed a plea in abatement. From a judgment sustaining the plea in abatement and dismissing the petition without prejudice, the petitioner appeals. Reversed and remanded.

Reversed and remanded.

Johnson & Allen, of Indianola, for appellant.

Pleas in abatement are looked upon with disfavor by this court.

Grenada Bank v. Bourke, 110 Miss. 342, 70 So. 449; Wood Preserving Co. v. Meyer, 76 Miss. 586, 25 So. 297.

Section 6042 of the Code provides that fees of all county officers allowed by law in connection with lands sold to the state for taxes shall be paid by the state when such land shall be sold by the state, and that upon such sale the land commissioner shall carefully calculate said fees and certify the same to the auditor, who if he finds the same correct, shall issue his warrants therefor to the proper persons. All this was done, and as shown by the agreed statement of facts, the sum of $ 3, 131.15 is owing by the State of Mississippi to the appellant.

The plea in abatement should have alleged (which was not done), and it should appear that the remedy in the suit pending in the chancery court was as ample and efficient as the suit in the circuit court.

Wood Preserving Co. v. Meyer, 76 Miss. 586, 25 So. 297.

For a plea in abatement such as this to be sustained, it must appear that another suit is pending between the same parties on the same cause of action and for the same relief. This is not true here. The parties are different and the relief prayed for in the chancery suit of Humphreys County by the complainant therein could not be granted, nor could appellant here be granted the relief there which is sought in the instant case.

Griffin v. Bd. of Miss. Levee Com'rs., 71 Miss. 767, 770.

No recovery can be had by the state tax collector, as complainant, against the state auditor, as defendant, in the chancery suit in Humphreys County, the pendency of which is pleaded in abatement, and, therefore, the suit at bar should not have been abated.

Complainant seeks to have the chancery court of Humphreys County direct the state auditor to issue his warrant for said amount of money above mentioned, in favor of complainant, and to require the state treasurer to pay to complainant the said sum of money. The chancery court of Humphreys County is without authority to do so, and, of course, without authority to do so, then certainly it follows that no recovery can be had in the chancery suit in Humphreys County against the state auditor, which suit is pleaded in abatement. There is no authority to sue the state auditor or the state treasurer for the disbursement of funds in the state treasury.

Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 699; City of Biloxi v. Gully, State Tax Collector, et al., 182 Miss. 723, 180 So. 821.

The auditor should, by a writ of mandamus in the instant case, be directed to issue to the appellant his warrant for the amount sued for, less the amount admitted and agreed to be owing by the appellant to the State of Mississippi. The court having no authority to grant the relief prayed for in the Chancery Court of Humphreys County, as against the state auditor, the result is tantamount to there being no pending suit in said court involving the same parties and the same cause of action where the same relief may be granted.

Watkins & Eager, of Jackson, for appellant.

The plea in abatement should not have been sustained but should have been overruled, and the appellee should have been required to plead to appellant's petition for mandamus because:

(1) The cause of action is not the same. The appellant seeks by an appropriate proceeding, mandamus, to require the appellee to pay to her, as executrix of said estate, the balance owing to the decedent's estate, as appears from the face of the record. This suit involves no question of official defalcation on the part of the deceased chancery clerk. The suit is brought to require the appellee to pay to the appellant, as executrix of said estate, an amount of money, which, from the face of the record, appears to be admittedly due her. The plea in abatement did not deny the indebtedness on the part of the state to the decedent's estate, thereby admitting the same. The suit of the state tax collector is an entirely different controversy. The state tax collector says that the decedent's estate is indebted to the county, to the levee district, and to the drainage district, in a sum of money in excess of the amount which the state owes to the decedent's estate. The purpose of the two suits is entirely different. One is a petition for mandamus to require the issuance of a warrant for an amount confessedly due, according to the record; the other is a suit by an entirely different officer for an alleged defalcation in his official capacity, not as to state funds, but as to county levee district and drainage district funds. No further statement is required to demonstrate that the cause of action is not the same.

Foote v. Myers, 60 Miss. 790; Griffin v. Bd. of Levee Com'rs., 71 Miss. 767; State v. Large, 145 So. 346, 164 Miss. 318.

(2) The parties are not the same.

(3) Upon the face of the record it appears that the state tax collector can have no relief as to this particular fund. This court has no authority to issue a decree, nor has any other court, requiring the state auditor to withdraw the funds from the state treasury.

Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 698; City of Biloxi v. Gully, State Tax Collector, 182 Miss. 723, 180, So. 821.

The state tax collector cannot, by any kind of process, procure this fund to be withdrawn from the state treasury and paid over to him to be applied on such recovery, if any, he may eventually have against the estate of the tax collector.

Frank E. Everett, Jr., Assistant Attorney-General, for appellee.

There is no principle better settled than the general rule of law that the pendency of a former action in a court of competent jurisdiction within the same state or jurisdiction, between the same parties, and involving the same subject-matter and cause of action, wherein all the right of the parties thereto may be fully and finally determined and adjudicated, may be asserted as a ground for the abatement of the second action. The identity in these particulars should be such that if the pending suit had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties, and unless each of these elements is present, the pendency of one action will not operate to abate a subsequent one.

1 Am. Jur. 27, par. 14; State v. Large, 164 Miss. 318.

The chancery suit is the former action. It is still pending and undisposed of as the record in this case clearly shows.

The Chancery Court in Humphreys County has jurisdiction of all the parties and of the subject-matter and is a court within the same state.

The issue between the auditor and the executrix in the first suit is the same as between the auditor and executrix in the second suit. The same question and problem exists between these two.

It is agreed that the same sum is involved in the two suits, even though there is a slight discrepancy as to the actual figures. It is further agreed that the indebtedness of Mr Hutchens to the state, county, drainage and levee districts is the same in the first suit as in the second suit. There is no question but that the same...