Reinecke v. Reinecke

Decision Date13 October 1913
Docket Number16035
Citation63 So. 215,105 Miss. 798
CourtMississippi Supreme Court
PartiesMRS. M. L. K. REINECKE et al. v. JOSEPH E. REINECKE

APPEAL from the chancery court of Jackson county, HON. T. A. WOOD Chancellor.

Suit by Joseph E. Reinecke against Mrs. M. L. K. Reinecke and others. From a judgment overruling a demurrer to the bill, defendant appeals.

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

Affirmed.

Denny &amp Denny, for appellants.

In the demurrer filed by appellants it is urged, in effect that appellee has no right in this case because he was bound by decree rendered in cause 1976.

All matters complained of in the present suit were included and adjudicated in said cause No. 1976 and, the instant suit being a collateral attack upon the judgment of the chancery court in cause No. 1976, to which appellee was party defendant and had ample opportunity to submit his defense and declined to do so. Appellee is without right in this cause and the demurrer to his bill should have been sustained.

All matters set up in the bill are either by way of defense to suit of appellant Mrs. Reinecke against appellee, No. 1976 or seek to evade or render ineffectual or void the decree rendered in that cause.

The bill of complaint in this cause does not seek to review the judgment of' the chancery court in said cause No. 1976 or show that, in law, such decree is fatally defective for any reason whatever. It is merely that appellee now feels that he would defend the suit of his mother, and regrets at this late day his disregard thereof, and now seeks, in an improper and unlawful manner, to have the chancery court hear his defense thereto and deny his mother, by a different and new, as well as unlawful, proceeding, the relief granted her in suit No 1976, although he assigns no reason or lawful right to do so, or show any excuse for his failure to defend suit No. 1976 when he had full and ample opportunity to do so.

"That complainant (appellee) therein and thereby collaterally attacks the judgment and final decree of the chancery court of Jackson county, Mississippi, in cause styled Mrs. M. L. K. Reinecke v. J. E. Reinecke, No.1976, on the general docket of the chancery court of said Jackson county," is evident from a perusal of the bill of complaint and that such proceeding is not maintainable is settled beyond controversy by long established precedent and decisions of this court whenever the question has been touched upon. Moore v. Ware,51 Miss. 206; Parisot v. Green, 46 Miss. 747; Christian v. Oneal, 46 Miss. 669; Kelly v. Harrison, 69 Miss.856; McLemore v Railroad Co., 58 Miss. 514; Cocks v. Simmons, 57 Miss. 183; Sweatman v. Dean, 38 So. 231, 76 Miss. 641; Ala. & V. Ry. Co. v. Thomas, 38 So. 770, 86 Miss. 27.

Many other cases could be cited, but the rule is so well established that, to justify a collateral attack on a judgment as attempted in the bill in this case, the judgment complained of must be void and not merely irregular or voidable, we deem it unnecessary to list all the cases of this court declaring such rule. The bill contains no allegations tending to show or charge that the decree rendered in cause No. 1976 was void or even irregular or voidable.

The demurrer was well founded for the further reason that it appears from the bill that the matters set up and complained of therein were adjudicated and finally settled by decree rendered in cause No. 1976. The entire case was determined therein and cannot now be reviewed or again adjudicated. It was settled therein for all time and, that litigation might cease and property rights settled and confidence therein maintained it is deemed wise not to disturb that which was accomplished in a proper, lawful and solemn manner as in cause of Mrs. Reinecke v. J. E. Reinecke, No.1976.

It is plainly evident that the demurrer of appellants to bill filed in this cause should have been sustained and the bill dismissed and it was grievous error for the chancery court to do otherwise and the decree overruling said demurrer should be reversed and this cause dismissed.

H. B. Everitt, for appellee.

The court, when the bill was taken for confessed, was bound to follow the bill and should have granted no relief not shown by the bill to be proper, legal and equitable. The court had no right to cancel one map and substitute the other, but had the court responded to the issue made in regard to lots five and six and decreed a reformation of that deed it by no means follows that lots eleven and twelve, representing the balance of the land really belonging to Joseph would not have been included. But when the court did not decree reformation at all but simply ordered a cancellation of the plat of survey and also a cancellation of all of the deeds of Joseph, one of which was made without reference to the map and not pretended to be in error at all, the parties were simply left in this shape to adjust matters for themselves, and the decree was absolutely void.

I have stated that the judgment was void, and also that if in any part valid it was not res adjudicata as to any of the relief asked by the present proceedings for adjusting the status of all parties concerned. The decree is void in the following particulars, to-wit:

The decree merely ordered a cancellation of the deeds held by Joseph. Such an order, standing alone, was foreign to the purposes of the bill and void. When the bill was taken for confessed no relief could be granted except such as was within the fair scope of the allegations and prayer of the bill. 16 Ency. of Law and Pro. 496, and cases cited; West Felicians R. R. v. Stockett, 27 Miss. 739; Garland v. Hull, 13 S. & M. 76, 51 Am. Dec. 140; Belew v. Jones, 56 Miss. 342.

Such a complete departure from the case made by the bill rendered the decree void and not voidable. Smith v. Gardner Hdwe. & Sup. Co., 83 Miss. 654, 36 So. 9; Reid v. Gregory, 78 Miss. 247, 28 So. 835. But as a matter of law there was no equity on the face of the bill as to any matter or relief sought.

The map could not be altered or vacated by proceedings authorized by section 4969 of the Code of 1906 the court having no other jurisdiction of the subject-matter and that only by having before it all persons in interest. It is under that Code provision that the appellee here is proceeding, and the unwarranted procedure of Mrs. Reinecke is not res adjudicata of the subject. Since that was manifestly the whole purpose of the bill and the reformation of deeds merely incidental the whole proceeding was a nullity.

It is true the bill alleges that because of errors in the map the complainant conveyed to Joseph more and different land than she intended and undertakes to tell what she intended by simply referring to her new map and saying she so intended. But that did not disclose a right to take from Joseph anything she had conveyed to him, and since the court should not have so held on the case made by the bill it will not be assumed that the court intended to decree such a reformation of the deeds as to effect such purpose, the decree not having undertaken to do anything of the kind. It makes no difference that the conveyances were merely deeds of gift from parent to child. The legal status once fixed must abide the same rules of law and equity as obtain in transactions between strangers. Courts of equity will correct mutual mistakes to carry into effect contracts as made and will correct a mistake made by one party if induced by the fraud or misconduct of the other party, but Mrs. Reinecke had the tract surveyed and divided into ten lots and then conveyed to Joseph all the land lying between the front and back tiers of lots under the description of lots five and six and now claims the right to have that land divided into four lots as lots five and six and eleven and twelve and cancel the deed to Joseph so as to enable her to confine him to such smaller lots on the ground that she had so intended, and to enable her to take so much from Joseph and give to Robert. This may be excusable as an exercise of parental authority but can receive no countenance in a court of equity.

It may be conceded that by reason of the mistakes and errors of the surveyor, Mrs. Reinecke, when she conveyed to Joseph lots five and six have him more land than she knew she was giving but, as said by this court...

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