Miller v. Phipps

• Decision Date: 16 March 1931
• Docket Number: 29143
• Citation: 161 Miss. 564,133 So. 128
• Court: Mississippi Supreme Court
• Parties: MILLER, STATE TAX COLLECTOR, v. PHIPPS et al

133 So. 128

161 Miss. 564

MILLER, STATE TAX COLLECTOR, v. PHIPPS et al

No. 29143

Supreme Court of Mississippi

March 16, 1931

Division A

On Motion To Strike Bill Of Exceptions.

APPEAL from chancery court of Sunflower county, HON. C. M. MURPHY Special Judge.

Suit between W. J. Miller, State Tax Collector, etc., and W. H Phipps and others. From the decree the former appeals. On motion to strike bill of exceptions from record. Motion overruled.

APPEAL from chancery court of Sunflower county.

HON. C M. MURPHY, Special Chancellor.

Suit by W. J. Miller, State Tax Collector, against W. H. Phipps and others. From the decree, complainant appeals. Reversed and remanded.

Motion overruled. Reversed and remanded.

B. B. Allen, of Indianola, and J. H. Sumrall, of Jackson, for appellant.

When the stenographer refused to transcribe notes and the trial judge refused to sign the bill of exceptions, and the opposing counsel also, refused to inspect it, an attorney can then complete list of exceptions by his affidavit.

Section 729, Code of 1930.

No notes or record gotten up as provided by law shall be stricken from record in this court, "for any reason, unless it be shown that such notes are incorrect in some material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on by the parties, nor becomes a part of the record as provided by law."

Sec. 729, Code 1930.

When the amended bill was filed in this case it was a continuation of the original suit.

But when there is a supplemental bill, the original and the supplement thereto are treated as one pleading, although a demurrer may go to the supplement alone, just as it may to a part of a bill.

Sec. 308, Griffith's Chancery Practice.

Broadly speaking an election of remedies is the choice by a party to an action of one or two or more coexisting remedial rights, where several such rights arise out of the same facts; but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other. Thus in its technical and more restricted sense, election of remedies is the adoption of one of two or more coexisting remedies with the effect of precluding a resort to the other.

20 C. J. page 1.

Where actions against different persons are consistent and concurrent, the doctrine of election does not apply and the prosecution of one does not bar the prosecution of the other; and an unsuccessful attempt to recover against one, in the absence of circumstances creating an equitable estoppel, will not bar an action against the other. A party may pursue any number of consistent and concurrent remedies against different persons, until he has obtained satisfaction from some of them.

20 C. J., page 8.

To make them inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demand which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.

20 C. J. page 11.

But where the action against the different persons are not inconsistent, the doctrine of election of remedies has no application, and the remedies against all persons liable may be pursued until satisfaction is obtained. So, the prosecution of a misconceived and unmaintainable action or defense against one person does not preclude an inconsistent action against another.

20 C. J., p. 17.

Joint tort-feasors are both jointly and severally liable, and may be proceeded against either singly, jointly or individually or all combined.

Bailey v. Delta El. Lt. Co., 86 Miss. 634, 38 So. 354.

Where two or more owe another a common duty, and by a common neglect of that duty such other person is injured, then there is joint tort with joint liability.

Nelson v. I. C. R. R. Co., 53 So. 619.

The doctrine of election of remedies applies only where a party, having elected to pursue one of two inconsistent remedies open for the assertion of a right arising from the same state of facts, is estopped from afterwards pursuing the other.

A grantor in a deed of trust sought to recover the land conveyed by the deed, and alleged that the sale under the deed was void. Held, that the grantor did not elect to pursue one remedy to the exclusion of the other.

Watson v. Perkins, 88 Miss. 64, 40 So. 643.

Section 2314 of the Code of 1930 provides that after a suit has been dismissed, the bar of the statute of limitations does not run in the interval of the filing of a new suit, provided such suit be instituted within one year from the date of such dismissal.

Section 2314 of the Code of 1930; Cossar v. Grenada Oil Mill, 138 Miss. 892, 103 So. 509; Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8.

Chapter 286, Laws 1926, does not take away from the appellant the power to prosecute the suit in question.

Miller v. Hay, 109 So. 16; Miller v. Davis, 109 So. 721; Miller v. Johnston, 109 So. 715; Globe & Rutgers v. Miller, 108 So. 180.

J. L. Williams and Frank Everett, both of Indianola, and Wm. M. Hall, of Memphis, Tenn., for appellees.

Bills of exception may be taken in the chancery court when signed by the chancellor and become a part of the record when the matters embraced therein would not be a part of the record otherwise.

Section 401, Code 1930.

A method of perfecting a record is provided where the stenographer dies or resigns or fails to transcribe his notes and also in the event of death or incapacity of the judge or his refusal to sign the transcribed notes then the same can be presented on appeal by an affidavit of the attorneys.

Sec. 729, Code of 1930.

An appeal is not a matter of right under the common law, but is purely a statutory right, and being statutory the statutes must be substantially followed.

The purported bill of exceptions does not affirmatively show, as is required by statute, that the same was ever presented to the chancellor for his signature and cannot be made a part of this record by the affidavit of only one counsel representing appellant as was undertaken.

Pittman v. State, 124 So. 761.

This court must assume that the trial judge refused to sign the special bill of exceptions in this cause for the reason that he conceived that it did not fairly state the facts.

Pittman v. State, 124 So. 761.

The legislature has attempted to provide a method of supplying a bill of exceptions under all contingencies, and particularly in case of the death or default of the stenographer who took the notes of the evidence. An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant who has secured a judgment or decree in his favor, the party desiring to appeal therefrom must pursue the method and remedy provided by statute.

McClanahan v. O'Donnell, 114 So. 336.

The only effect of the words "without prejudice" in the order by which the first suit was dismissed is to prevent the dismissal of that suit in operating as a bar to any new suit which plaintiff might therefore desire to bring on the same cause of action.

24 Cyc. 894; Cole v. Fagan, 108 Miss. 100, 66 So. 400.

The dismissal of a suit without prejudice does not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the complainant (plaintiff) and hence it will not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending.

Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609; W. T. Raleigh & Co. v. Barnes, 143 Miss. 600, 109 So. 8; Nebitt v. Bacon, 32 Miss. 212.

When a party has two inconsistent remedies available to him and he chooses to pursue one, then he is bound by this election and cannot proceed on the others.

Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 A. L. R. (N. S.) 786, 17 Ann. Cas. 611; Quitman County v. Gore, 117 So. 262; Hatley Mfg. Co. v. Smith, 123 So. 887.

When this suit was filed on the 24th day of December, 1926, it was barred by chapter 286 of the Laws of 1926.

The statute validated and confirmed all acts, proceedings, orders and resolutions of boards of supervisors in the matter of the sale of county bonds and road district bonds, and the price received therefor in all cases where such bonds were sold and the consideration therefor paid more than three years prior to January 1, 1926. And it abated all suits brought subsequent to January 1, 1926, to recover any monies on account of the sales of such bonds or the price paid therefor.

Secs. 1, 2, Chapter 282, Laws of 1926.

Section 3 of Chapter 286, the Laws of 1926, withdraws from the revenue agent the power to prosecute any suit abated by the acts of 1926 of the legislature.

Miller v. Globe-Rutgers Fire Insurance Co., 108 So. 180; Johnson v. Reeves, 72 So. 925, 112 Miss. 227.

Argued orally by B. B. Allen, for appellant, and by Frank E. Everett, for appellee.

OPINION

ON THE MOTION.

McGowen, J. delivered the opinion of the court on the motion to strike bill of exceptions from the record.

This case was tried in vacation by a special chancellor. The official stenographer was duly notified to file a transcript of the evidence, but failed so to do; and, within the time allowed therefor by paragraph d, section 1, c. 145, Laws 1920, Hemingway's Code 1927, section 599, which now appears as section 729, Code of 1930, counsel for the appellant presented to the chancellor a bill of exceptions setting forth his conception of the evidence introduced and rulings made at the trial. The chancellor...