Palmetto Fire Ins. Co. v. Allen

• Decision Date: 10 October 1927
• Docket Number: 26571
• Citation: 114 So. 145,148 Miss. 97
• Court: Mississippi Supreme Court
• Parties: PALMETTO FIRE INS. CO. et al. v. ALLEN. [*]

114 So. 145

148 Miss. 97

PALMETTO FIRE INS. CO. et al. v. ALLEN. ^[*]

No. 26571

Supreme Court of Mississippi

October 10, 1927

Division A

Suggestion of Error Overruled Nov. 7, 1927.

1 PLEADING. Amended bill to compel issuance of fire policy under alleged renewal contract held not demurrable because of inconsistent allegation therein.

Amended bill, seeking to compel issuance and delivery of fire insurance policy under an alleged contract for renewal, held not demurrable because of filing of alleged substantial copy of original policy inconsistent with original allegation that policy was lost or destroyed, since such allegation was not inconsistent with general purpose of original bill or relief sought.

2 EQUITY. Filing "substantial copy" of policy on which action to compel delivery is founded held sufficient (Hemingway's Code 1927, section 531.)

Filing of substantial copy of insurance policy with bill seeking to compel issuance and delivery of policy under alleged contract of renewal held sufficient compliance with Code 1906, section 734 (Hemingway's Code 1927, section 531), requiring copy of writing to be annexed to or filed with declaration, since a "substantial copy" of the writing means a copy of all material and essential elements, terms, and conditions thereof, which is all that is required by such statute.

3 EQUITY. Filing copy containing all essential elements, terms, and conditions of writing on which suit is founded is sufficient (Hemingway's Code 1927, section 531).

Where it is sought to charge defendant in suit founded upon a writing, he can be affected only by the material and essential elements, terms, and conditions of the writing, and filing of copy thereof which contains all such elements, conditions, and terms constitutes a compliance with Code 1906, section 734 (Hemingway's Code 1927, section 531).

4. PASTIES. Permitting joinder in amended bill of new parties defendant held proper on compliance with law relative thereto (Hemingway's Code 1927, section 372).

Joinder in amended bill of new parties defendant held properly permitted, where there was compliance with Code 1906, section 597 (Hemingway's Code 1927, section 372), relative to procedure to be followed in such case.

5. SPECIFIC PERFORMANCE. Chancery court had jurisdiction of suit to compel issuance and delivery of policy after loss pursuant to renewal contract.

Chancery court held to have had jurisdiction of suit to compel issuance and delivery of insurance policy, after loss, in conformity to alleged contract for renewal of former policy which was alleged to have been lost or destroyed.

6. APPEAL AND ERROR. Right to amend within prescribed time held not lost because of want of diligence in filing mandate in lower court.

Where amended bill was filed ten days after filing of supreme court mandate in lower court within time allowed for amendment after filing of such mandate, right to amend was not lost on account of laches or want of diligence, though filing of mandate in lower court was not accomplished until ten months after disposal of case.

7. EQUITY. Bill to compel delivery of policy after loss and to enforce recovery thereunder need not be sworn to.

It is not necessary that a bill seeking to compel compliance with an agreement to issue and deliver an insurance policy after a loss, and to enforce recovery thereunder for the loss, shall be sworn to.

APPEAL from chancery court of Bolivar county, Second district.

HON. HARVEY MCGEHEE, Chancellor.

Suit by N. F. Allen against the Palmetto Fire Insurance Company and others. From a decree overruling a demurrer to the amended bill, defendants appeal. Affirmed and remanded.

Decree affirmed.

A. A. Armistead, for appellants.

The attaching of the so-called "substantial" copy of the so-called policy, the nature, terms, and conditions of which does not in any way aid the amended bill in stating a cause of action. Home Insurance Company v. Newman, 111 So. 455. This case destroys absolutely the idea that you can lose a policy and then manufacture one by getting some old policy and attaching the usual furniture forms to it and filing it in court unsworn to as a "substantial" copy.

We therefore submit that a "substantial" copy in no way complies with the requirements of the court in this decision. We insist, that in the absence of the actual policy, that was issued being attached to the bill, showing all the nature, terms and conditions of the policy claimed to have been issued, it is necessary to the complainant's right to state a case in court and that the case of Home Insurance Company v. Newman, holds that a "substantial" copy is insufficient, and the court on the suggestion of error referred to holds that the policy claimed to have been renewed and which was lost must be attached to the bill or that all the terms and conditions of the policy must be set out in the bill. Wright v. Frank, 61 Miss. 32; Miazza v. Yerger, 53 Miss. 135.

"No amendment is permissible which would in effect amount to the institution of a new and wholly different suit, either as to parties, or as to the cause of action, or changing the frame of the original bill." Clarke v. Hull; 31 Miss. 520; Miazza v. Yerger, 53 Miss. 135. A. & E., P. & P., 472.

"An amendment to a bill or to an answer must allege new or additional facts, otherwise it is not material and is not an amendment." Richardson v. Wolfe, 31 Miss. 616; Griffith's Chancery Practice, sec. 39, page 400; Griffith's Chancery Practice, sec. 700, p. 824.

"The amendment must not make an entirely new case, nor change the frame and essential character of the original bill. The new matter must be germane to the original bill and must not be of such a character that if inserted in the original bill it would render it multifarious." Brooks v. Spann, 63 Miss. 198; Griffith's Chancery Practice, sec. 389, p. 397; Palmetto Fire Ins. Co. v. Allen, 141 Miss. 681-691, inclusive.

"The original matter is res adjudicata." "The so-called amended bill is a mere fishing bill and therefore demurrable." Richardson v. Wolfe, 31 Miss. 616; Buckner v. Ferguson, 44 Miss. 677. A bill for discovery must be sworn to. 22 A. & E. of P. & P. at pages 1018-1023.

Want of Diligence. The court will bear in mind that this case was disposed of as before stated on November 2, 1925, 141 Miss. 690, and the so-called amended bill not filed until October 9, 1926, practically eleven months after the case was disposed of in the supreme court. No step was taken in the further prosecution of this suit until the filing of this so-called amended bill, which instituted a wholly different suit to the original suit both as to parties, cause of action and change of form of the original bill entirely.

We insist that these statutes and want of diligence they quote will not permit that; a litigant cannot be held in the courts of the country on account of the failure of the losing party to pay the costs in the supreme court, so that the mandate of the supreme court cannot be returned to the lower court for the case to be further proceeded with. This was not done and this suit held up and this defendant held in court until they concluded to try the "substantial" policy route. The authorities sustain this view. Griffith's Chancery Practice, sec. 392, p. 401, citing Mortgage Company v. Bunkley, 88 Miss. 651; Griffith's Chancery Practice, secs. 392-393, p. 402, Note 22.

"The so-called amended bill is multifarious because it joins in the bill separate defendants who have no common or connected interest in the suit." Griffith's Chancery Practice, note to section 394, page 404.

There is no equity in the amended bill. The case of Insurance Company v. Taylor, 52 Miss. 441, relied on by opposing counsel is not in point because in that case it was a suit on an oral contract to issue a policy.

There is a wide difference between an oral contract to issue a policy and an oral contract to renew a policy. 1 Cooley's Briefs on Insurance at pages 368, 410, 411 and 850.

If there was no proper amendment of the original bill and if there was no proper policy attached to the bill, the "substantial" copy the court having held to be insufficient, then there were no material averments in the so-called amended bill to authorize the amendment, and no amendment therefore having been made within the time allowed by the court, and the appellant having been guilty of negligence in the prosecution of this suit for the other grounds assigned in this brief and the authorities cited, it is respectfully submitted that the case should be reversed and judgment finally rendered in the supreme court.

Roberts & Hallam and W. B. Alexander, Jr., for appellee.

Appellant in his brief observes that the appellee "simply obtained an expired copy of a policy of the Palmetto Fire Insurance Company, and certain furniture forms attached thereto, and then made it an exhibit to the amended bill, and asked for judgment on this substantial copy." And further that "this clearly sets forth that it is a manufactured policy, pure and simple, because they would not swear to the amended bill, and they called the attached a 'substantial copy.'" As to the oath to the amended bill, no oath was necessary, either to the amended bill, or to the original bill. A verification to a bill to quiet title is unnecessary. Bynum v. Stinson, 81 Miss. 25, 31; Waller v. Shannon, 53 Miss. 500, 501; Griffith's Chancery Practice, par. 189, page 186.

We do not believe that counsel can cite a Mississippi Statute, or a Mississippi case requiring such a bill as is filed in this case to be sworn to. Appellant is under a misconception as to what a "substantial" copy is. Instead of a qualifying adjective, we believe the word "substantial" is one of the strongest and most...