Russell v. Denson

• Decision Date: 06 March 1911
• Docket Number: 14844
• Citation: 98 Miss. 859,54 So. 439
• Court: Mississippi Supreme Court
• Parties: S. D. RUSSELL v. L. L. DENSON

54 So. 439

98 Miss. 859

S. D. RUSSELL v. L. L. DENSON

No. 14844

Supreme Court of Mississippi

March 6, 1911

APPEAL from the chancery court of Jasper county, HON. J. R. BYRD Special Judge.

Suit by S.D. Russell against L. L. Denson. From a decree dismissing complainant's bill he appeals.

Decree reversed and cause remanded.

Robt. L. Bullard, for appellant.

But whether the demurrer ought to have been overruled or not, it was palpable error to refuse complainant leave to amend his bill, or to dismiss it without prejudice. It is inconceivable upon what theory of law, equity, right or conscience the court below so persistently denied to complainant every motion and effort he made to save to himself the right to try with respondent the merits of their conflicting claims. Section 593 of the Code is something more than mere ornament. It commands that "Amendments shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice."

In vain did this complainant pray the court that he might be allowed the benefit of this statute, that possible injustice might not be done him; that his land might not be stricken from him, without another chance to be heard. That measure of justice, right, and good conscience he now confidently asks of this court, and he respectfully submits that the decree herein ought to be reversed and the demurrer overruled, or that the cause be remanded with leave to amend.

Deavours & Shands and C. W. Thigpen, for appellee.

We cannot agree with counsel for appellant that it was "palpable error to refuse complainant the right to amend his bill or to dismiss it without prejudice."

The demurrer was filed on July 28th, and was not heard until the next day, the 29th, and at that time, after the demurrer had been argued and the court had sustained the same, appellant declined in open court to amend his bill, whereupon judgment final was entered dismissing finally the bill. It would indeed be a novel proceeding if the court could allow an amendment to the original bill under such conditions. All motions made by appellant in the lower court to amend the bill or the decree were made much too late. In the case of Duggan v. Champlain, 23 So. 179, and 75 Miss. 441 the court held that an offer on the part of the complainant to amend his bill made during the argument of counsel and before judgment, came to late. In the instant case, the argument of the counsel was over, the decree of the court finally dismissing appellant's bill had been entered, and appellant on his motion had been allowed appeal to the supreme court before any motion to amend was made by him.

Counsel for appellant in his brief did not refer to a case and we submit that he cannot cite a case the court has held that after a final decree dismissing complainant's bill, that the complainant was allowed to amend his original bill, and it is equally preposterous to contend seriously that under such circumstances, the complainant should be allowed the privilege of dismissing a bill without prejudice which the court had already finally dismissed.

But as stated in the early part of this brief, had all of the amendments for which appellant asked, been allowed, he would even then not have had a bill which would stand before the demurrer filed by appellee. Appellee resectfully submits that the decree of the court sustaining the demurrer and dismissing the bill was correct and should be affirmed by this court.

OPINION

MAYES, C. J.

Some time in September, 1909, S.D. Russell commenced a suit in the chancery court for the purpose of having an alleged title to certain lands quieted and confirmed. It is plain that the proceeding was begun under section 549 of the Code of 1906 which provides that "the owner in possession of any land, or the owner thereof who may be out of possession, if there be no...