Osborne v. Vince, 41833

• Decision Date: 24 April 1961
• Docket Number: No. 41833,41833
• Citation: 129 So.2d 345,240 Miss. 807
• Parties: W. B. OSBORNE, Jr., by James A. Alexander, Jr. v. Ollie VINCE and Exie Mae Vince.
• Court: Mississippi Supreme Court

Page 345

129 So.2d 345

240 Miss. 807

W. B. OSBORNE, Jr., by James A. Alexander, Jr. v. Ollie VINCE and Exie Mae Vince.

No. 41833.

Supreme Court of Mississippi.

April 24, 1961.

Alexander & Herring, Jackson, for appellant.

W. H. Watkins, Tylertown, for appellee.

ETHRIDGE, Justice.

The issue is whether the chancery court erred in permitting complainants to amend their bill of complaint fifteen years after it had been filed and there had been no intervening prosecution by them of their suit. We think this was manifest error, and hold that defendant's motion to dismiss for want of prosecution should have been sustained.

On May 2, 1945, appellee Ollie Vince filed a bill of complaint in the Chancery Court of Walthall County against Ed W. Dawson, address unknown, and W. B. Osborne, San Antonio, Texas. The bill was wholly insufficient to charge a cause of action. From the amendment later sought by complainant, apparently the mineral interest involved was in the NE 1/4 of the SE 1/4, Section 19, Township 1 North, Range 13 East, of Walthall County. The first paragraph of the bill recited complainant owned that land and another twenty acres. However, it then charged that in 1939 complainant executed to Dawson a mineral deed covering another tract of land, not that described above. No reference was made to the book and page of its recording. Dawson transferred this interest to W. B. Osborne, as to certain described lands not those stated above. The mineral deed was a cloud on complainant's title and should be cancelled, because L. F. Magee was Dawson's agent when it was executed and Magee did not secure the signature of complainant's wife, who did not sign the deed. The bill did not aver the property was homestead. It stated that Magee later promised Vince he would 'release' the mineral deed upon payment of a certain sum, which Vince paid; and that the deed itself was secured by fraud. Those in substance are the allegations of the bill of complaint.

It is manifest that the bill of complaint is wholly inadequate. It does not seek under a proper description to cancel the mineral interest of Osborne as to any lands Osborne claimed. It incorrectly described such lands. It charged fraud as a conclusion, without any facts to support it. It did not charge that the land was homestead property, nor that the signature of complainant's wife was forged.

The record reflects a publication of process for Dawson, but none for Osborne. However, on May 29, 1945, the chancellor entered an order reciting that on motion of Osborne, made in open court, he was allowed an additional thirty days in which to plead.

James A. Alexander, Jr., an attorney of Jackson, testified that shortly after May 2, 1945, a copy of the bill of complaint was received in his law office, and on May 21, he wrote Thomas Nunnelley, attorney for Vince, calling his attention to the face of the inconsistent and inadequate property description, and asking him to advise as to the discrepancy, with a request for additional time to answer. On May 24, a somewhat similar letter was again written to Nunnelley. On May 31, the latter wrote Alexander thanking him for calling his attention to the error, and stating it would be corrected by amendment as soon as he could prepare it, with a copy to be sent defendant's counsel. On June 2, Alexander again wrote Nunnelley stating that, although he had additional time to plead, an answer would not serve any purpose until the bill was amended. On June 30, 1945, defendant's counsel again wrote complainant's attorney that he had not filed an answer, since Osborne did not claim any interest in the land described by the bill. The case was not continued by consent. Defendants 'did not care whether' complainant prosecuted the suit or not. Alexander did not know Nunnelley, and had no knowledge of his moving and death.

The papers in this 1945 case were never in the chancery clerk's files; it was 'on the big docket but not on the trial docket.' W. H. Watkins, Jr., complainant's present attorney, of Tylertown, said he knew Nunnelley, who practiced law there until July 1945. Nunnelley lived at a hotel which burned in that month. The fire apparently destroyed a number of court records in Nunnelley's room. He died the next year. In 1958, complainant brought his file on the case to Watkins' partner, and about a year later Watkins learned of the matter and began preparing an amendment.

On May 17, 1960, fifteen years after complainant filed the original bill, he filed a motion to amend it, by substituting a new draft of a bill of complaint, and to revive the cause against the devisees of defendant Osborne, who had died in the interim. Defendant answered the motion, asserting the original bill was wholly insufficient and complainant should be denied an amendment because of his negligent failure to prosecute his suit. Defendant also filed a motion to dismiss the cause for those reasons. After hearing the chancellor allowed complainants to amend the bill and to revive it, overruled defendant's motion to dismiss, and entered an order to that effect. He granted an interlocutory appeal.

Miss.Code 1942, Recompiled, Section 1578, provides: 'The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.' In Mississippi Central Railroad Co. v. Brookhaven Lbr. and Mfg. Co., 1933, 165 Miss. 820, 147 So. 814, 815, it was held that the amendment of this statute in 1930 made it mandatory on the clerk and the court, 'unless good cause be shown to the contrary.' Since the file was not in the clerk's office, he had no way of knowing about the case. Hence no motion was made by him under the statute, and, for the same reason, the trial court did not dismiss the...