Mitchell v. Film Transit Co.

• Decision Date: 26 April 1943
• Docket Number: 35280.
• Citation: 13 So.2d 154,194 Miss. 550
• Court: Mississippi Supreme Court
• Parties: MITCHELL et al. v. FILM TRANSIT CO. et al.

13 So.2d 154

194 Miss. 550

MITCHELL et al. v. FILM TRANSIT CO. et al.

No. 35280.

Supreme Court of Mississippi

April 26, 1943

J O. Eastland, of Ruleville, J. J. Breland and R. L. Cannon both of Sumner, and C. C. Pace, of Cleveland, for appellants.

Brewer & Sisson, of Clarksdale, Neill, Clark & Townsend, of Indianola, and Watkins & Eager, of Jackson, for appellees.

ANDERSON Presiding Justice.

This case is identical in every respect with its companion case of Albert Parker v. Film Transit Company, Miss., 13 So.2d 159, in which the opinion goes down with this, except as to a part of the court procedure out of which a question arose which was not involved in the other case. We will now take that question up for consideration.

It is whether the Chancery Court erred in refusing to sustain the motion of complainant in this case to dismiss his bill and thereafter proceed on the same cause of action in the Circuit Court of Tallahatchie County. The question grew out of these facts: This action and that in the companion case were brought at the same time in the Chancery Court of Sunflower County. Before filing the bill in the present case the Chancery Court of Sunflower County appointed a guardian for the complainant for the purpose expressed in the order of authorizing this suit. Thereafter the Film Transit Company filed its petition in the District Court of the United States for the Northern District of this State against the complainants in both suits to have that court render a declaratory judgment fixing the principles governing those cases. This proceeding was under the Federal Statute, 28 U.S.C.A. § 400, and Maryland Casualty Co. v. Pacific Coal Co. et al., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826. The complainants resisted the federal court rendering a declaratory judgment on the ground of the pendency of the causes in the Chancery Court, which, under the law, had full jurisdiction to adjudicate and determine the rights of the parties. The federal court sustained that view and dismissed the cause from that court. Thereupon the Parker case was tried resulting in a decree for the Film Transit Company. Mitchell's guardian then brought another suit in the Circuit Court of Tallahatchie County for his ward against the Film Transit Company involving the identical cause of action. This suit was brought not as guardian for the ward but as next friend. After so doing the guardian moved the Chancery Court to dismiss the chancery court case. That motion was overruled and the cause went to trial and was tried and concluded in that court, resulting in a decree in favor of the Film Transit Company. Before the trial, however, the Film Transit Company had made its answer a cross-bill and sought to enjoin the prosecution of the circuit court case referred to. The final decree awarded the injunction.

We are of the opinion that appellant went too far before requesting the nonsuit and we reach that conclusion upon the following considerations: The evidence on the question of liability was identical in both cases. Counsel in their briefs so state. Appellant by virtue of the pendency of his cause in the Chancery Court defeated the declaratory judgment proceeding in the federal court. Then he waited to see how the companion case would result and when it ended in a final decree in favor of the Film Transit Company then for the first time he sought to abandon his chancery court case and prosecute the one in the Circuit Court. It is true that the right of a plaintiff or complainant to take a nonsuit is large nevertheless it is not unlimited. It is in the discretion of the court. "When in any respect the cause has proceeded to that point, or when already such steps have been taken, that the defendant has thereby secured some substantial right which would be destroyed by the dismissal" it should not be permitted. Griffith's...