Roberts v. Burwell

• Decision Date: 19 November 1917
• Docket Number: 19162
• Citation: 78 So. 357,117 Miss. 451
• Court: Mississippi Supreme Court
• Parties: ROBERTS v. BURWELL ET AL

78 So. 357

117 Miss. 451

ROBERTS v. BURWELL ET AL

No. 19162

Supreme Court of Mississippi

November 19, 1917

APPEAL from the chancery court of Holmes county, HON. A. Y WOODWARD, Chancellor.

Suit by Lou Roberts against W. B. Burwell and others. From a decree dismissing the bill, H. S. Roberts, executor of Lou Roberts deceased, appeals.

The Code sections referred to in the opinion are as follows:

Section 3125, Code of 1906 (Section 2489, Hemingway's Code) "Limitation of Express Trusts.--Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for shall be filed within ten years after the cause thereof shall accrue and not after; saving, however, to all persons under disability of infancy or unsoundness of mind, the like period of time after such disability shall be removed; but the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one years."

Section 3097, Code 1906 (Section 2461, Hemingway's Code) "All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of action accrued, and not after."

Section 598, Code 1906 (Section 358, Hemingway's Code): "Of Multifariousness. --If a demurrer for multifariousness shall be sustained the court may authorize amendments by directing separate bills to be filed without new process as to the parties before the court, and by the addition of new parties, or otherwise, as may be necessary or proper for the attainment of justice; but the uniting in one bill of several distinct and unconnected matters of equity against the same defendants shall not be an objection to the bill."

Reversed and remanded.

Geo. Butler, for appellant.

1. The bill did not become multifarious because of the amendment mentioned in the above quoted paragraph. 2. Even if the amendment had the effect to make the bill multifarious, at common law, it was not multifarious under the statute. 3. If the amendment made the bill multifarious at common law, or under the statute, the objection was to the form and not to the substance and could be reached only by a special and separate demurrer and not by a general demurrer.

There may be some question as to whether or not the chancery court had jurisdiction to enforce the statutory landlord's lien upon the cotton and live stock mentioned in the amended bill and if it did not, that is, if the matter therein referred to, was not within equity cognizance, the amendment did not have the effect to make the bill multifarious. Neylands v. Burge, 14 S. & M. 201; 14 Enc. Pl. & Pr. 197, 205; 6 Enc. Pl. & Pr. 342. However, the whole case made by the original bill is bottomed upon the will and the construction of the will of Burwell Roberts, deceased, and partition proceedings subsequent thereto. All parties to this suit claim by and under that will and the subsequent proceedings. Whatever rights the respective parties have to the land or to the rights growing out of the land, depend upon the will and the partition proceedings. So also the lien of Lou Roberts on the agricultural products and live stock mentioned in the amendment referred to grows out of and is bottomed upon the same will and the same proceedings.

Independent of the attempt to charge a lien against the land, the bill in this case, in so far as it seeks to reach the agricultural products, grown upon the land, and to subject them to complainant's claim, is maintainable on a well known and universally recognized principle of equity jurisprudence. Even if the bill had not sought to enforce a lien upon the land, inasmuch as the rights of all parties grew out of the same instrument and the same proceedings, it was maintainable under the principle announced in Pollock v. Savings Institution, 61 Miss. 293; Nevitt v. Gillespie, 1 How. 109; Crawford v. Railroad Company, 73 Miss. 708; Blumer v. Ulmer, 44 So. 161; Telephone Company v. Williamson, 101 Miss. 1.

It is too clear for argument that under this theory of the bill, both originally and as amended, it would not have been subject to the criticism of multifariousness.

The courts are not inclined to lay down any hard and fast rule applicable to all cases in defining multifariousness. Each case must depend upon its own particular facts. There is one test, however, universally employed and if the bill can stand that test, it is never declared to be multifarious. If the parties have one common interest touching the matter of the bill or when one general right is claimed, it cannot be said that the bill is objectionable on account of its multifarious character.

In the following cases, decided prior to the passage of the statute, now in force as section 598, Code of 1906, the court has treated fully of this subject. Butler v. Spann, 27 Miss. 234; Waller v. Shannon, 53 Miss. 500.

At common law, multifariousness, so called, was of two forms; multifariousness as to matters and multifariousness a to parties; 14 Enc. Pl. & Pr. 199. The reason for the rule against multifariousness is to protect the defendant from unnecessary expenses and to serve his convenience: 14 Enc. Pl. & Pr. 201, 202. It applied to common-law actions as well as to equity proceedings. In common-law proceedings, it was commonly referred to as misjoinder, while in equity proceedings it was more commonly referred to as multifariousness.

The objection on the ground of multifariousness was not favored at common law and the courts were not inclined to look with favor upon such objection; 14 Enc. Pl. & Pr. 214. It was because of the disinclination to look with favor upon the objection that the legislature adopted sections 598 and 599 of the Mississippi Code of 1906.

Section 598 of the Code provides: "That uniting in a bill several and disconnected matters of equity against the same defendants shall not be an objection to the bill." This section further provides that in case should the bill be dismissed, because of its multifarious form, that the court in its discretion might direct the framing of separate bills or of separate issues when that course would best serve the ends of justice and convenience the defendant.

This statute has been under construction in several instances in this state, and under this statute as construed in Henry v. Henry, 79 Miss. 452; Jones, v. Jones, 99 Miss. 600; New Orleans, etc., Railroad v. New Orleans, etc., Railroad, 107 Miss. 453, and Wherry v. Latimer, 103 Miss, 534. The bill in this case as amended would not be multifarious as to the Burwell Mercantile Company or W. B. Burwell, even if it be conceded that as against these defendants, it joins distinct and unconnected matters of equity.

On the other hand, if the court is of the opinion that the amendment does not set out a separate and disconnected equity as against the Burwell Mercantile Company, that is, a cause or case that would give the chancery court equitable jurisdiction, the bill would not be multifarious even at common law. The equity court would simply decline to take or enforce jurisdiction of the legal demand set up in the bill otherwise calling for equitable relief. This is fundamental. Neylands v. Burge, 14 S. & M. 201; 14 Enc. Pl. & Pr. 197; 6 Enc. Pl. & Pr. 342; 14 Enc. Pl. & Pr. 205. It is elementary that only the prejudiced party can complain.

"It is well settled that the objection of multifariousness or misjoinder is a personal one and that only a defendant who is prejudiced thereby can be heard to complain of it." 14 Enc. Pl. & Pr. 212. This text is supported in this state by the case of Wherry v. Latimer, 103 Miss. 524; Hopson v. Harrell, 56 Miss. 202; Washington v. Soria, 73 Miss. 665; 19 So. 485; 55 Am. St. Rep. 555; Graves v. Hull, 27 Miss. 419.

This court has more than once decided that a demurrer could not be overruled in part or sustained in part. Washington v. Soria, 73 Miss. 665; Grego v. Grego, 78 Miss. 443; Jones v. Jones, 99 Miss. 600; New Orleans, etc., Railroad v. New Orleans, etc., Railroad, 107 Miss. 453; Wherry v. Latimer, 103 Miss. 524; Graves v. Hull, 27 Miss. 419; Garner v. Lyell, 35 Miss. 176; Gibson v. Jayne, 37 Miss. 164; Hentz v. Delta Bank, 76 Miss. 429, and other authorities too numerous to mention.

"Second. In event the bill as amended is multifarious and that the demurrer because thereof was properly sustained, should it have caused it to be amended by the filing of separate bills as provided by section 598, Code of 1906, although no request so to do was made by the complainant?"

The answer to the first question would seem to render a discussion of this interrogatory unnecessary, but it occurs to me that if the bill was multifarious, and the demurrer was sustained on this ground, that the court of its motion should have granted the complainant the right to make amendment by directing a separate bill to be filed.

At common law it seems that "sometimes instead of authorizing an amendment, the court will put the complainant to his election as to which of his causes of action he will continue to prosecute," 14 Enc. Pl. & Pr. 215, and this course was pursued by this court under our statute in Nelms v. Brooks, 105 Miss. 74.

The suit primarily is to enforce a suit against the land and as the rights of all the parties grow out of this instrument they are joined in one suit. In this respect the case is very similar to the case of Nelms v. Brooks, supra. In that case the bill was demurred to because it was multifarious; the lower court overruled the demurrer, and an appeal was prosecuted to the supreme court; the supreme court decided that the bill was multifarious, reversed and remanded the case for trial of one issue; which the court found stood at the threshold of the...