Keanum v. Southern Ry. Co.

• Citation: 151 Miss. 784,119 So. 301
• Decision Date: 10 December 1928
• Docket Number: 27213
• Court: United States State Supreme Court of Mississippi
• Parties: KEANUM et al. v. SOUTHERN RY. CO. [*]

119 So. 301

151 Miss. 784

KEANUM et al. v. SOUTHERN RY. CO. ^[*]

No. 27213

Supreme Court of Mississippi

December 10, 1928

Division A

1 JUDGMENT. Proceedings by administratrix for authority to compromise damage claim held not trial of merits which may be pleaded in bar.

Proceedings in chancery court by administratrix seeking authority to compromise and settle damage claim held not to constitute a trial of the merits of the cause which may be pleaded in bar of subsequent suit on the same cause of action.

2. COMPROMISE AND SETTLEMENT. Replication to special pleas sufficiently alleged collusion and fraud in securing compromise and settlement.

Replications to special pleas alleging collusion and fraud in proceedings in chancery court by administratrix for authority to compromise and settle damage claim held sufficiently definite to require an answer, and, if established, to avoid decree authorizing settlement and release executed in consummation thereof.

3. EXECUTORS AND ADMINISTRATORS. Release executed by administratrix must be based on valid decree of chancery court authorizing compromise and settlement consummated by execution of release.

In order that release executed by administratrix be valid, it must be based on a valid decree of chancery court authorizing compromise and settlement afterwards consummated by execution of release.

4 JUDGMENT. Judicial proceedings may be attacked for fraud which may be established by parol evidence.

It is permissible to attack judicial proceedings for fraud, and establish such fraud by parol evidence.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG, Judge.

Action by Oma Lea Keanum and another, minors, suing by their guardian and next friend, against the Southern Railway Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Judgment reversed, and cause remanded.

J. A. Cunningham, for appellants.

Chapter 167, Laws of 1908, as amended, provided that such cause of action may be brought by an administratrix for the benefit of all parties concerned. However, it also provides specifically, that "the determination of such suit shall not bar another action unless it be decided on its merits." According to the appellant's traverse of appellee's special plea of res judicata this collusive and fraudulent proceeding in the chancery court did not determine this suit on its merits. See Sutberry v. Meridian Fertilizer Factory, 64 So. 723; McRaney et al. v. New Orleans & Northeastern R. Co., 90 So. 881; Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669.

The mere fact that administratrix had a right to bring suit does not answer the allegations of fraud.

Ely B. Mitchell, for appellee.

Where the administrator acts in good faith a compromise by him of a claim or a debt due the estate is valid and binding without previous authorization in vacation as provided for by Code of 1906, section 2065. Montgomery Sheriff et al. v. Mutual Life Ins. Co. of N.Y. 111 Miss. 6, 71 So. 162; Bailey v. Dilworth, 18 Miss. 404; Long v. Shackelford, 25 Miss. 559; Gullet v. Berry, 31 Miss. 346; Martin v. Traver, 43 Miss. 517; Anderson, Admr., v. Gregg et al., 44 Miss. 170.

As incidental to the power to sue and collect, the executor or administrator has the right to compromise any demand of decedent, provided he acts honestly and within the range of a reasonable discretion for the true interests of the estate. 23 C. J. 1198; 8 R. C. L., Sec. 70; Parker v. Providence & Stanington Stream Boat Co. (17 R. C. L. 376), 33 Am. St. Rep. 869; Greenlee v. East Tennessee R. Co., 5 Lee (Tenn.), 418; Stephens v. Nashville, etc., R. Co., 10 Lee (Tenn.), 448; Sykora v. K. Thrashing Mach. Co., 59 Minn. 130; Foote, Admr., v. Great Northern R. R. Co., 81 Minn. 493; Fox v. Fairchild, 133 Miss. 617.

A decree rendered in a former suit is a bar to a subsequent suit between the same parties, and in the same right, and for the same subject-matter. Manley v. Kidd, 33 Miss. 141; Williams v. Luckett, 77 Miss. 394; Bates v. Strickland, 139 Miss. 637; Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331.

Could the plaintiff bring his suit in the circuit court without first having the decree of the chancery court set aside?

Where a compromise was authorized by the court relief be sought by a bill in equity. 23 C. J., Sec. 455, 1201; Henry Co. v. Taylor, 36 Ia. 259; McGoon v. Scales, 9 Wall, 23, 30; 19 L.Ed. 545.

Since the appellant admits that the administratrix had the right to compromise the claim, since his traverse to the plea of res adjudicate does not set out specific acts from which fraud can be inferred, since the plea of res adjudicata is legal and binding decree, and since this decree is standing, and has never been set aside, it necessarily follows that the court was correct in his opinion in this cause, and this case should be affirmed.

Argued orally by Ely B. Mitchell, for appellee.

OPINION

COOK, J.

The appellants, Oma Lea Keanum and Elbert Keanum, minors, suing by their guardian and next friend, Charley Lawson, instituted this suit in the circuit court of Tishomingo county against the Southern Railway Company, seeking to recover damages for the death of their father, Tilden H. Keanum, which was alleged to have been the result of injuries received by him on account of the negligent operation of appellee's freight train through the incorporated town of Burnsville, Miss.

To the declaration, the appellee filed special pleas which it denominated "pleas of res adjudicata," in which pleas it was alleged that the duly appointed and qualified administratrix of the estate of Tilden H. Keanum deceased, had previously filed a petition in the chancery court of Tishomingo county, seeking authority to compromise and settle the claim for damages for the death of the said Tilden H. Keanum at and for the sum of one thousand dollars; that, upon proof offered in support of this petition, the chancery court granted a decree authorizing the said administratrix to compromise and settle said claim for the sum of one thousand dollars; and that, in pursuance of such authority, the said administratrix received from the appellee the sum of one thousand dollars in full compromise and settlement of all liability for the death of the said Tilden H. Keanum, and executed to appellee a full and complete release of all claims or demands based upon the injury and death of the said Keanum. As exhibits to these pleas, there were filed copies of the proceedings appointing the administratrix of the estate of decedent, copies of...