Neill v. Wells
| Citation | 164 Miss. 372,145 So. 341 |
| Decision Date | 02 January 1933 |
| Docket Number | 30291 |
| Court | United States State Supreme Court of Mississippi |
| Parties | NEILL et al. v. WELLS et al |
1 PLEADING.
When demurrer is overruled or sustained, it is done as an entirety
2 JUDGMENT.
Decree sustaining general demurrer and dismissing bill bars new action.
3 JUDGMENT.
Sustaining of special demurrer going to procedural question is not bar to new action.
4. PLEADING.
General rule is that, where general and special grounds of demurrer are erroneously included in same pleading, court will look only to grounds of general demurrer.
5. APPEAL AND ERROR.
When decree sustaining demurrer containing both general and special grounds is in general terms, it will be assumed that decree was on merits.
6. APPEAL AND ERROR.
Where demurrer containing both general and special grounds was sustained, appellate court would look to decree to determine on what ground demurrer was sustained.
7. EQUITY. Decree rendered, when sustaining demurrer containing both general and special grounds, held to have sustained demurrer on ground of multifariousness.
Decree recited that demurrers were sustained, since it was opinion of court that to join actions against different groups of defendants was improper and rendered bill multifarious.
8. EQUITY.
Objection of multifariousness is procedural and belongs to special demurrer.
9. JUDGMENT.
Sustaining of demurrer, containing both general and special grounds, because of multifariousness, held not res judicata of new suit, since objection belongs to special demurrer.
10. COSTS. Equity. Judgment.
Effect of recital in decree, sustaining demurrer on special grounds, limiting amended bills to sixty days, was final as to particular original bill and carried costs, but did not preclude new suit.
11. EQUITY.
Where decree sustaining demurrer went to procedure, bill of review would not lie because not necessary and because it does not lie for mere matters of form.
12. APPEAL AND ERROR.
Where defendant combined general and special grounds in one demurrer and court sustained demurrer, defendant could not complain that appellate-court found ground for concluding that decree was on special grounds, so as not to bar new suit.
HON. V. J. STRICKER, Chancellor.
APPEAL from chancery court of Hinds county, HON. V. J. STRICKER, Chancellor.
Bill of review by W. S. Wells and others, as receivers of the Mississippi Farm Bureau Cotton Association, against C. L. Neill and others. A demurrer was overruled, and defendants appeal. Reversed, demurrer sustained, and bill of review dismissed.
Reversed, demurrer sustained and bill of review dismissed.
Butler & Snow and Whitfield Peirce, all of Jackson, and Wm. M. Hall, of Memphis, Tennessee, for appellants.
Appellants' failure to file a separate bill with respect to their cause of action upon the bond of Neill, Pate and the guaranty company, as the decree directed, resulted in their suit thereon becoming dismissed and res adjudicata under the provisions of that decree.
Moore v. Evans, 98 Miss. 855, 54 So. 438; McCollum v. Dillard, 152 Miss. 260, 119 So. 180; Buckingham v. Jones, 154 Miss. 584.
The law is that complainants in a bill of review are limited to the error specified.
Only those errors will be considered which are specified in the bill of review.
Gibson's Suit in Chancery, sections 1233, 1244; Griffith, sec. 635, 734 below 28a.
Howie & Howie, of Jackson, for appellee.
The cases in which a bill of review may be brought are settled. 1st, error of law apparent on the face of the decree; 2nd, new matter which has arisen in time after the decree; 3rd, on the special license of the court, on new proof come to light since the decree, and which could not possibly have been used at the hearing. In America, the practice generally is, to remit a recitation of the facts which conduce to the decree, embodying in it only the relief granted. Because of this difference, the court is not, with us, confined to the body of the decree.
Handy v. Cobb, 44 Miss. 699, 702, 703.
In the American practice the errors which may be alleged in support of a bill of review are not confined, literally, to the "face of the decree;" but the decree is to be treated with us, as including the bill, answer and other proceedings, excepting the evidence at large, and all these may be looked into to find errors apparent on the "face of the decree."
Knowland v. Sartorious, 46 Miss. 45, 54; Enochs v. Harrelson, 57 Miss. 465, 468.
The error of law that will justify a bill of review must consist of the violation of some statutory enactment, or of some recognized or established principle or rule of law or equity, or of the settled practice of the court.
10 R. C. L. per sup. Ed. sec. 361, page 573.
The purpose of a bill of review for errors apparent upon the record is the same as the purpose of an appeal, and when the decree complained of is reversed upon the bill of review the proceedings then had should be the same as would be had upon a reversal of a like decree upon appeal.
McIlwaine, Knight & Co. v. Felder, 107 S.E. 115.
A bill of review affords a means for the correction of error of law apparent on the face of a decree, and where a bill is filed for that purpose the questions open for examination are such questions of law as arise on the pleadings, proceedings and decree.
Palenske v. Palenske, 118 N.E. 46.
Argued orally by Geo. Butler and Whitfield Peirce, for appellant, and by William Fontaine, for appellee.
The receivers of the Mississippi Farm Bureau Cotton Association filed their original bill in the chancery court against the officers and directors of the association, charging them with liability for the loss in the aggregate of a large sum of money wasted by the officers and directors in dealing in what is commonly known as "cotton futures," and which course of conduct it was shown by the bill was ultra vires--was outside of and beyond the uses and purposes authorized by the charter of the corporation. There was joined as a party to this original bill the United States Fidelity & Guaranty Company as surety for C. L. Neill as president and for H. O. Pate as secretary-treasurer, the terms of the bond making the surety company responsible to the corporation for any loss "occasioned by any acts of fraud, dishonesty, or any criminal act," of the two officers aforesaid. No other officer or director was so bonded.
All the defendants, including the surety company, demurred to the bill, and all assigned as one of the grounds of demurrer that the bill was not maintainable on its merits; in other words, that "there is no equity on the face of the bill," and all of these demurrers contained also the special or procedural ground of demurrer that there is a misjoinder of causes of action and that the bill is multifarious. These were not separate demurrers, the general grounds and the procedural grounds being separately filed and presented, but in all the demurrers the general and special grounds were contained in the same paper or pleading. The court upon the hearing of these demurrers entered the following decree:
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