Jackson v. Lemler

• Decision Date: 23 November 1903
• Court: Mississippi Supreme Court
• Parties: ALBERT JACKSON ET AL. v. MAX LEMLER

35 So. 306

83 Miss. 37

ALBERT JACKSON ET AL. v. MAX LEMLER

Supreme Court of Mississippi

November 23, 1903

FROM the chancery court of Washington county. HON. A. MCC. KIMBROUGH, Chancellor.

The appellants, Jackson and wife, and the appellee, Lemler, and others, were all defendants to the original suit in the court below, which original suit was begun by Reuben W. Millsaps complainant. The facts were these:

In 1891 Jackson and wife, appellants, owed appellee, Lemler, $ 780 and in February of that year they executed a mortgage on land, their homestead, to secure the debt. The debt evidenced by a promissory note, and the mortgage securing it were transferred and assigned by appellee, Lemler, to complainant, Millsaps. In March, 1892, after the assignment of the mortgage debt to Millsaps, the appellants, mortgagors sold the land to appellee, Lemler, and in October, 1892 Lemler, appellee, executed a second mortgage on it to secure a debt which he owed to the Citizens' Building and Loan Association, and thereafter on the same day appellee, Lemler, conveyed the property back to appellants, Jackson and wife.

In January, 1894, Millsaps, the complainant, instituted this suit to foreclose his mortgage on the property, which was prior and superior to the rights of all the other parties, and he made them all defendants to the suit.

The appellants, Jackson and wife, answered the original bill, made their answer a cross-bill against appellee, Lemler, setting up that as between appellants, Jackson and wife, and appellee, Lemler, the latter was primarily liable to pay off and satisfy the debt due Millsaps, the complainant. Lemler did not answer the cross-bill, and no steps whatever were taken by appellants, Jackson and wife, thereon until after a final decree had been rendered in favor of complainant, Millsaps, October, 1895, enforcing his mortgage, but the decree in favor of Millsaps did not in any way adjudge the rights of appellants, Jackson and wife, against appellee, Lemler, propounded in the cross-bill.

In June, 1901, about six years afterwards, appellants, Jackson and wife, filed a pleading in the cause, setting out the various asserted equities between themselves and appellee, Lemler, and praying in the alternative that it be treated as an amended cross-bill in the case then pending, or as an original bill against appellee, Lemler. At the next term of the court Lemler, appellee, moved the court to strike the pleading from the files, in so far as it was filed as an amended cross-bill, because it was filed without leave of the court or chancellor, and objected to such leave being granted because it came too late and after the final decree in complainant, Millsaps', favor and, as was claimed by him, after the case was out of court. This motion the court below sustained, and declined to grant leave for the pleading to be treated or then filed as an amended cross-bill.

Lemler, appellee, then demurred to the pleading as an original bill against him, setting up the statutes of limitation, and the court below sustained the demurrer and rendered a final decree against appellants, Jackson and wife, and in appellee, Lemler's favor, from which Jackson and wife appealed to the supreme court.

Judgment reversed and cause remanded.

Jayne & Watson, for appellants.

It will be seen that when the original answer and cross-bill of appellants was exhibited in the chancery court, appellee was summoned to answer the cross-bill of appellants and process was duly executed on him, citing him to plead, answer, or demur to the cross-bill feature of appellant's answer and crossbill. Appellee made no answer to the cross-bill of appellants and no decree pro confesso was taken against him in the case and no final decree. Therefore, the appellants had the right to amend their cross-bill at any time they saw fit and without leave of the court. This right was given to them by the statute. Code 1892, § 543.

Upon the case as it thus stood no issue had been made up and none could have been made until appellee had answered. No final decree could have been taken until a decree pro confesso was had. Neither of these steps were taken in the case, consequently the case made against the appellee by the cross-bill of appellants stood simply on the cross-bill and the process, and thus it remained until appellants exhibited their amended crossbill. This was the only phase that the case could present to appellee. He could have had nothing to do with any feature of the amended answer and cross-bill which was aimed at equities not existing between appellants and him. To put it otherwise, if the amended answer and cross-bill had contained any matter which affected the rights of the other litigants in the cause, such as Millsaps, Thomas, and the Building Association, that feature could not concern appellee, for he alone was summoned to answer the amended answer and cross-bill, and to him it stood as an original bill. This right was given to appellants at equity as well as by statute. Code 1892, § 536, and the authorities there cited.

We further submit that a motion to dismiss or strike from the files the amended cross-bill in this case was not the proper way to effect a disposition thereof. Majors v. Majors, 58 Miss. 806.

In view of the fact that no answer was made to the original cross-bill and no orders granting affirmative relief made thereon, the question involved in this case could not be res adjudicata. Majors v. Majors, 58 Miss. 806; Lorance v. Platt, 67 Miss. 183.

We understand the rule to universally prevail to the effect that unless an issue is made up on a separate equity and on adjudication had thereon in the principal case, the action of the court will not be res adjudicata as to a suit brought to enforce the separate equity.

Our view of this case is that as between appellants and appellee on the original cross-bill filed by appellants, the case presented an existing and unadjudicated suit, and consequently the limitations contended for by appellee did not apply. If the case stood as a pending cause between appellants and appellee, appellants could have set it down for hearing at any time before the dismissal of the cause, moved for a decree pro confesso and followed that by a final decree. On the other hand, they could have done as they did, amend their cross-bill as they had a right to do under the statute above cited and proceed in that, thus treating the whole case as a pending cause as to appellee.

J. H. Wynn, for appellee.

As to the action of the chancellor in striking from the file the paper so far as it was filed as an amended cross-bill and not allowing it to be filed as an amended cross-bill, I have to say that it was filed without leave of the court and amendments cannot be filed without such leave or leave of the chancellor in vacation. Code 1892, § 542. The only provision for amending without leave of the court is found in § 343, Code 1892.

The court properly refused to allow the paper to be filed as an amended cross-bill because all the facts set out in this paper were known to the appellants long before the final decree was rendered, and the appellants had been guilty of such laches as to debar them from consideration of the court. Amendments must be made before final decree. Duggan v Champlin, 75 Miss. 446. The case was pending from January, 1894, till November, 1895. All the facts set out in this paper were bound...