Robertson v. Aetna Ins. Co.

• Decision Date: 11 February 1924
• Docket Number: 23720
• Citation: 134 Miss. 398,98 So. 833
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, State Revenue Agent, v. AETNA INS. CO. et al

98 So. 833

134 Miss. 398

ROBERTSON, State Revenue Agent, v. AETNA INS. CO. et al

No. 23720

Supreme Court of Mississippi

February 11, 1924

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by the Aetna Insurance Company and others against Stokes V Robertson, state revenue agent. From a decree for plaintiffs defendant appeals. Affirmed and remanded as to certain plaintiffs.

Affirmed and remanded.

George Butler, for appellant.

This is not an effort to correct the judgment or decree under section 1016, of the Code of 1906, because of a mistake, miscalculation or misrecital of any sum of money, quantity of anything, or of any name. Certainly it would seem that under the case of Wilson v. Handsboro, 99 Miss. 252, the case made by this proceeding is not within the terms of the statute.

As we understand it, counsel rely upon such cases as Corry v. Buddendorff, 98 Miss. 98; Wilson v. Handsboro, 99 Miss. 252; Brown v. Wesson, 114 Miss. 216; and Huddleston v. Huddleston, 95 So. 674, and undertake to present a case within one of the original heads of equity jurisdiction on account of a mistake of fact, as was presented particularly in the case of Brown v. Wesson, supra.

The allegations contained in this proceeding to correct the decrees do not meet the requirements laid down in Brown v. Wesson, supra. Therefore, the insurance companies are not entitled to relief on the showing made by their petition as to any of the companies. In the petition in this case it is alleged that the mistake grew out of the fact "that the discovery did not disclose . . . that petitioners, and each of them, carried re-insurance, that is to say, that they re-insured part of the risks written by them in the state of Mississippi with other fire insurance companies, defendant in said petition."

In other words, the petition to correct the decrees is predicated upon the act of the defendants in not making a proper discovery in response to the direct interrogatories propounded to them in the original tax proceeding.

There is no reason offered, or excuse given, why the defendants should have made this answer. Interrogatories had been propounded to them. They had answered these interrogatories under oath, and the decree adjudicated the exact amount of taxes due by each company. They show no diligence, and in reality, did not aver that their discovery was erroneous.

To summarize, we say: 1. This proceeding to correct these decrees is clearly not within the terms of section 1016, Code of 1906. 2. The alleged errors in the decree were not induced by the mistake of the officers of the court. 3. The error was purely an error of law and not one of fact. 4. The insurance companies have not shown or averred any sort of diligence, and, therefore, upon the plainest principles of equity are estopped to invoke the jurisdiction of this court to correct an error brought about by their own negligence and indifference.

Watkins, Watkins, & Eager, and R. L. McLaurin, for appellees.

The legal principles underlying this case, from all the authorities, may, without controversy, be stated as follows: The rule is well settled that whenever a judgment or decree, through accident, mistake or fraud, is incorrectly entered, and is not the judgment or decree which would have been entered had not such accident, mistake or fraud intervened, then in such case a court of equity will afford relief and correct the judgment or decree. The power of a court of equity in such case does not arise from, nor is it restrained by section 736 of Hemingway's Code of the state of Mississippi, but is an independent ground of equity jurisdiction, and the power of the court of equity to give relief in such case is as complete as if the subject-matter for correction were a contract instead of a judgment. The rule is subject, however, to the modification that the mistake must be one of fact, and not of law.

The question was first presented in the case of Webster v. Skipwith, 26 Miss. 341, and was again presented in Wilson v. Town of Handsboro, 99 Miss. 252. This question was also treated in the following cases: Brown v. Wesson, 115 Miss. 216; Huddleston v. Huddleston, 95 So. 674, 132 Miss. .

From the case of Brown v. Wesson, supra, and other cases cited, it is made abundantly clear that the rule invoked in this case is not peculiar to Mississippi, but is the law everywhere. The rule recognizes the principle that there should be an end of litigation, and that a question once litigated should not be re-litigated, but, notwithstanding this rule, and the necessity for its observance, if a judgment, as entered, represents a mutual mistake of the parties, or of the court, the rendering of absolute justice is of greater importance than the adherence to any technical rule, and in recognition of this principle such decrees are invariably open to correction.

Counsel for appellant state that the demurrer to the petition should have been sustained because the petition was, as to a number of companies, in direct conflict with the original answer of certain appellees, filed in the intervention proceedings.

It is true that, by agreement of counsel, the original proceedings were made an exhibit to the petition, but the petition to correct the judgment did not ratify or adopt any of the statements contained in the original proceedings. Reference was made to them in order that the court might know exactly what steps were taken in the original proceedings. The right of action in this case was not founded on the exhibits. In other words, the exhibits did not form the basis of the action. This question was presented before this court in Terry v. Jones, 44 Miss. 540; McKinney v. Adams, 50 So. 574, not officially reported.

This case was tried upon appellants' demurrer to the defendants' petition to correct the judgment, all of the allegations of which were admitted on demurrer, and in no manner controlled or altered by any real or apparent conflict contained in the exhibits.

It must be borne in mind, too, that the petition did not deal with re-insurance carried with companies not defendant to the suit, because, as to any such re-insurance, the appellees were submitting themselves to liability. There would be no duplicate recovery in such case, because, as to the re-insurance companies not parties to the suit, no judgment was being entered against them. The error in this case, however, grew out of the fact that, through accident and mistake, the attention of the court was not directed to the fact that a duplicate recovery would result in the judgment entered.

It will be noted that counsel call attention to the fact that there is a discrepancy in the re-insurance stated in the original answer as to some of the appellees, and that stated in the petition to correct the judgment. And counsel calls attention to the fact that the Aetna Insurance Company, in its original discovery, stated that it had total re-insurance of forty-three thousand two hundred eighty dollars and twenty-three cents and, in the petition to correct the judgment, it was stated that that company had re-insurance of forty thousand eight hundred sixty-four dollars and eighteen cents. We might direct the attention of the court to the fact that any statement of re-insurance contained in the original answer of the appellees was not responsive to any prayer for discovery, and, as a matter of fact, was not discovery at all, but was a mere voluntary statement made on behalf of the company itself. The state, in that case, was not asking for discovery as to re-insurance, and was not dealing with re-insurance. The insurance companies were not asking for a reduction on account of re-insurance. The statement of re-insurance was, therefore, purely voluntary and intended to accomplish no purpose whatsoever.

It will further be noted that variance in the statement as to re-insurance would be expected if one statement should include all re-insurance and the other statement only re-insurance carried with certain companies defendant to the suit, or if one included only a statement of the re-insurance carried with strictly re-insurance companies, and the other included the amounts carried with the other companies defendant to the suit.

Counsel say, however, that the judgments should not be corrected because the original statement of gross premiums were furnished by appellees. The appellees did furnish a statement of gross premiums, but the state was only calling for a statement of the gross premiums which were taxable. The state was not calling for a duplication of recovery. And by mistake and error, the appellees filed statements which did not call to the attention of the court the fact that a portion of the premiums were for insurance ceded to other companies who were parties defendant to the suit. Suppose such had not been the case; suppose when they filed their answers this information had been given to the court. Confessedly, judgments as were taken would not have been taken. The allegations of the petition to correct the judgments are that the judgments were taken through error and mistake.

ANDERSON, J. SMITH, C. J., dissenting.

OPINION

ANDERSON, J.

Appellees, insurance companies doing business in this state, filed their bill in the chancery court of Hinds county to correct the decree so far as it affected them entered in the case of Stokes V. Robertson, Revenue Agent, v. AEtna Insurance Company et al., in said court, and to have entered the decree sought and intended by the parties to be entered in said cause. A decree was rendered sustaining the prayer of appellees' bill, from which appellant was granted an appeal to settle the principles of the cause.

The following case is presented: In February, 1921, the...