Northern v. Scruggs

• Decision Date: 08 July 1918
• Docket Number: 20316
• Court: Mississippi Supreme Court
• Parties: NORTHERN ET AL. v. SCRUGGS

79 So. 227

118 Miss. 353

NORTHERN ET AL. v. SCRUGGS

No. 20316

Supreme Court of Mississippi

July 8, 1918

Division B

APPEAL from the chancery court of Monroe county, HON. A. J MCINTYRE, Chancellor.

Bill by Mrs. J. H. Scruggs against H. A. Brazill and others. From an order of the chancellor sustaining an order of the clerk in vacation dismissing the bill, defendants, other than Brazil appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. H Clifton, for appellant.

The general rule as to the plaintiff's absolute right to take a nonsuit is "that he may dismiss his suit at any time before the jury retire to consider of its verdict;" which general rule has been made a statutory rule by section 802, Code 1906, and made applicable to all courts by section 687, Code 1906. Our courts said in the Lucedale Case, 74 So. 435, that this general rule was of equity origin.

But this abstract right is qualified when growing out of the pleading or proceedings in the case, the defendants have acquired any rights against the plaintiff, or is entitled to a decree or judgment, at the time the plaintiff moves for a nonsuit; and by the following additional qualifications that if the defendant has appeared by plea or answer in reconvention asking for affirmative relief, then while the plaintiff may dismiss his bill, this will not carry with it the defendants' cross-bill. Adams v. Lucedale, 74 So. 435; Revised Code 1906, section 802-3, 687; Canadian Mfg. Co. v. Fitzpatrick, 71 Miss. 347, 41 So. 270, which cites approvingly cases cited in, Chicago Ry. Co. v. Rolling Mill, 109 U.S. 792, 27 L.Ed. 1085-6, 3 Sup. 594.

We quote excerpts announcing this qualification of the general rule from some of the English and American chancery cases cited by the United States supreme court, viz: In re Coopers v. Lewis, 2 Phil. Ch. 131.

"The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position that he would have stood if the suit had not been instituted; it is not so when there has been a proceeding in the cause which has given the defendant a right against the plaintiff," In Re Banks v. Rose, 1 Rich. Eq. (S. C.) 234 it was said: "But whenever in the progress of the cause, the defendant entitles himself to a decree, either against a complainant or co-defendant, and the dismissal would put him to the expense or trouble of bringing a new suit, or making new proofs, such dismissal will not be permitted. "

In Re Conner v. Drake, 1 Ohio St. 167, the court declared: "The propriety of permitting the complainant to dismiss his bill is a matter within the sound discretion of the court which discretion is to be exercised with reference to the rights of both parties, as well the defendant as the complainant. After the defendant has been put to the trouble of making his defense, if in the progress of the case, rights have been manifested that he is entitled to claim and which are valuable to him, it would be unjust to deprive him of them merely because the complainant might come to the conclusion that it would be for his interest to dismiss his bill. Such a mode of proceedings would be trifling with the courts as well as with the rights of the defendants. We think the court did not err in refusing to permit complainant to dismiss his bill."

This announcement of the first qualification of the rule is better stated by Justice COOK in the Lucedale Case, supra: "The only limitation of the rule is applied to cases wherein the defendants have secured some rights by the filing of the bill which would be destroyed by the dismissal of the bill. Even then it is not a matter of discretion with the chancellor, it is the right of the defendants which control." Argument on proposition 1.

Now we insist that with this statement of the rule of law governing in this case, that the averments of the original bill itself establish all the material facts necessary to give these infant defendants the right to have a resale of their land, and an accounting. That to permit the plaintiff in the teeth of her pleading to withdraw her election to have a resale, and set up title in herself in another suit, when more than ten years have expired since the sale of these infants' land, and when the death of their father and other witnesses makes it impossible to now obtain the testimony; and when the mortgagee may have been in possession of the land long enough to poll their rights of recovery, would work a great injustice on these defendants; and as said by Justice WOODS, 3 Su. Rep. 603, supra, "be trifling with the administration of justice." The rights to a resale and claim of title under the first sale grow out of the same transaction and are inconsistent with each other; and the original bill shows clearly that it was the intention of the complainants to raise the money by a resale and abandon all claims to the land. For she had procured a purchaser of the land, and asked for a resale by the chancery court in order to carry out that intention. Then complainant is estopped, in this suit to set up title to the land, by her own pleading. Gaines v. Kennedy, 53 Miss. 103; Madden v. Railroad Co., 66 Miss. 258, 6 So. 181; Warriner v. Fant, 74 So. 822.

Even the title of land may be conveyed by estoppel, as where the defendant in his pleading admits the parole contract, or where he fails to deny the oral contract, and also fails to plead the statute. Metcalf v. Brandon, 38 M. B. P. 842. Again by the filing of the bill to foreclose the deed of trust in the chancery court there was a waiver of all right and title acquired under the foreclosure sale in pais. Higgins v. Haberstraw, 76 Miss. 627.

We insist that a court of chancery in the protection of its minor wards will see that the answer of their co-defendant, father and natural guardian, will inure to their benefit; and will be accepted as an assertion of these rights by the minors as well as the adult defendants. Carradine v. Carradine, 33 Miss. 698; Straw v. Railroad Co., 73 Miss. 446; Marks v. McElroy, 67 Miss. 545, 7 So. 408.

But the chancery clerk attempted to dismiss the cause under the procedure provided by our statutes for acts in vacation which are interlocutory only and a cursory review of these statutes will show the dismissal order is void.

Code 1906, section 520, provides: "That the clerk shall enter at large, on the minute book, every order made by him in vacation as orders are entered in term time."

"And at the expiration of monthly rules, each month said clerk shall enter an adjourning order as to such rules, so as to distinguish acts done at rules, from other acts done in vacation."

Section 521: "How such minutes preserved and approved," provides: "the minute so kept shall constitute a record of the office and shall be carefully preserved, as such, free from erasure or alteration." Page v. Superior Court Alamade Co., 18 P. 385 (Cal.); Revised Code 1906, section 510; Acock v. Halsey, 27 P. 193 (Cal.).

Again, section 525: "How proceedings before clerk to be conducted" provides: "In application and proceedings before the clerk in vacation, the same pleadings and evidence and form shall be observed, and the same process and service and return shall be necessary as though the proceedings were before the court."

We have not attempted to argue at length the contentions made in this brief but merely to state succinctly the facts and the rule of law applicable, for the reason that Chancellor EASTERLING has argued these points so ably and elaborately that any attempt on my part to add to his argument would have been a repetition.

For this error the case should be reversed and remanded.

Lamar F. Easterling, for appellant.

Could complainant in this stage of the proceedings dismiss her bill and withdraw her proposition which had been accepted--take back her prayer for relief which had become the prayer of the defendants.

At the time the complainant attempted the dismissal of the suit in vacation, either party thereto was entitled to a decree granting the relief prayed for in the bill and joined in the answer.

Had the cause been set down at any time before the dismissal in vacation, could the court have rendered a decree granting the relief? Most certainly it could. It could have appointed a trustee and ordered the property sold, the debt paid and the balance distributed to the defendants in accordance with the prayer of the answer and of the original bill. The minors did not have to answer. The court could, in its discretion, have appointed a guardian ad litem for them and directed him to answer, but his answer would have been formal. The chancery court is the guardian of all minors. It is the duty of this court to make any order advantageous to minors: To See that their interests are safeguarded; to give them the benefit of any defense to which they might be entitled and to accept for them any proposal or agreement to their best interest.

Section 604, Code 1906 (Code sec. 364), reads in part as follows: "The court may appoint a guardian ad litem to any infant--but the appointment shall not be made except when the court shall consider it necessary for the protection of the interest of such defendant, and a decree and judgment of any court shall not be void or erroneous because of the failure to have a guardian ad litem."

On the question of the duty of courts as to infants this court has said: "It is the duty of the chancellor to protect the interest of infants whether the proper defense be made or not, and for this purpose he should look to the record in all of its parts, and of his own motion give to the infant the benefit of all objections as fully as if specifically pleaded. An infant can waive none of his rights." Price v....