Lion Oil Refining Co. v. Crystal Oil Co.

• Decision Date: 01 October 1934
• Docket Number: 31311
• Citation: 171 Miss. 36,156 So. 593
• Court: Mississippi Supreme Court
• Parties: LION OIL REFINING CO. v. CRYSTAL OIL CO. et al

156 So. 593

171 Miss. 36

LION OIL REFINING CO. v. CRYSTAL OIL CO. et al

No. 31311

Supreme Court of Mississippi

October 1, 1934

Division A

1 JUDGMENT. Rule that things which might have been litigated as well as things actually litigated, in first suit, are res judicata, means those things involved in record of former suit and which might have been litigated and decided.

A matter is not "res judicata" simply because it might have been, but was not, included in the adjudication of a case disposed of, if in fact it was not presented by the pleadings or necessarily involved therein.

2 JUDGMENT.

Decree of chancery court confirming title and possession of mortgage to realty which mortgagee bought upon foreclosure of trust deed held not res judicata of action of unlawful entry and detainer instituted by mortgagee, where rents and compensation for improvements were sought in such action but were not sought in chancery proceeding (Code 1930, sec. 406).

HON. THOS. H. JOHNSTON, Judge.

APPEAL from circuit court of Monroe county HON. THOS. H. JOHNSTON, Judge.

Action of unlawful entry and detainer by the Lion Oil Refining Company against the Crystal Oil Company and others. Prom a judgment for plaintiff, appeal was prosecuted to the circuit court, wherein defendants pleaded in abatement pendency of chancery court proceeding. From a judgment sustaining the plea and dismissing the action of unlawful entry and detainer, plaintiff appeals, and defendants move to dismiss the appeal. Reversed and remanded.

Reversed and remanded.

Leftwich & Tubb, of Aberdeen, for appellant.

The lower court erred in sustaining appellees' plea in abatement.

Appellant brought an action of unlawful entry and detainer as provided by chapter 69 of the Code of 1930.

Section 3456, Code of 1930.

The action is solely one by which to get possession of land and it does not involve title.

Loring v. Willis, 4 How. 383; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Paden v. Gibbs, 88 Miss. 274, 40 So. 871; McCallum v. Gavin, 149 Miss. 885, 116 So. 94.

The court at the trial cannot inquire into the legal title, nor can secret equities be investigated.

Clark v. Bourgeois, 86 Miss. 1, 38 So. 187.

And for this reason the judgment as rendered by the court is not conclusive in another action. This is provided by section 3471, Code of 1930.

Richardson v. Callahan, 73 Miss. 4, 19 So. 95.

This court has long recognized the right of a litigant to sue at law on a debt and in equity to enforce a lien, they being distinct and independent remedies.

Payne v. Harrell, 40 Miss. 498.

Likewise, the pendency of an action at law to recover a judgment for a debt does not preclude a plaintiff from proceeding in equity to subject property fraudulently conveyed.

Anderson v. Newman, 60 Miss. 532; McCoy v. Case Threshing Machine Co., 112 Miss. 7, 72 So. 784; Mahon v. Columbus, 58 Miss. 311, 322; 1 C. J., sec. 90, pp. 69-70, and sec. 96, p. 74; Leonard v. Flynn, 89 Cal. 535, 23 Am. St. Rep. 500; Williams v. Gaston, 148 Ala. 214, 42 So. 552.

Paine & Paine, of Aberdeen, for appellees.

We submit that since the chancery court of Monroe county, Mississippi, first obtained jurisdiction of the present appellee and appellant, and the appellant in that court sought the same relief it afterwards sought by the unlawful entry and detainer suit, that the jurisdiction of the chancery court should not and could not be ousted and the lower court properly sustained the plea to the jurisdiction of the circuit court in the pending case.

In cases of concurrent jurisdiction the court which first acquired jurisdiction must be allowed to proceed with the case.

Freeman's Chancery, p. 308; Grenada Bank v. Waring, 135 Miss. 226, 239; Ricks v. Richardson, 70 Miss. 424; Griffin et al. v. Board of Miss. Levee Commissioners, 71 Miss. 767.

A party should not be allowed to prosecute two suits in different courts on the same subject matter against the same parties.

Griffith Chancery Practice, p. 542; Robertson v. Monroe County, 118 Miss. 541, 547; Section 406, Mississippi Code of 1930.

OPINION

Cook, J.

Prior to July, 1932, the appellee Crystal Oil Company was indebted to the appellant in the sum of ten thousand nine hundred twenty-one dollars and fifty cents, secured by a deed of trust on real estate in Aberdeen, Mississippi. The note evidencing this indebtedness was renewed from time to time, but in July, 1932, the indebtedness being then past due and unpaid, foreclosure proceedings were begun, and the property covered by the deed of trust was advertised for sale on September 5, 1932. On the day of the proposed sale, the Crystal Oil Company filed a bill in the chancery court alleging that the note secured by the deed of trust had been fully paid by a renewal note which was not secured by the deed of trust, and praying that the sale be temporarily restrained and that the deed of trust be canceled. No temporary injunction was issued, and the sale proceeded as advertised, and the property was sold to the appellant by the trustee.

Appellant being unable to get possession of the premises described in its deed, on September 7, 1932, it instituted an action of unlawful entry and detainer against the Crystal Oil Company, a copartnership composed of H. B. Holmes and H. B. Holmes, Jr., the Holmes Oil Company, a corporation, and Kirk F. Wait, tenant, and on September 28, 1932, secured a judgment awarding it possession of the property and a reasonable rental for the use and occupation thereof. From this judgment an appeal was prosecuted to the circuit court, and, when the cause came on for trial in the circuit court, the appellees pleaded in abatement thereof the pendency of the chancery court proceeding wherein, by cross-bill, the appellant was seeking confirmation of its title and possession of the property. This plea was sustained, and, from the judgment entered dismissing the unlawful entry and detainer proceeding, this appeal was prosecuted.

In July, 1934,...