Shackelford v. New York Underwriters Ins. Co.

• Decision Date: 07 October 1940
• Docket Number: 34238
• Citation: 198 So. 31,189 Miss. 396
• Court: Mississippi Supreme Court
• Parties: SHACKELFORD v. NEW YORK UNDERWRITERS INS. CO. et al

198 So. 31

189 Miss. 396

SHACKELFORD v. NEW YORK UNDERWRITERS INS. CO. et al

No. 34238

Supreme Court of Mississippi

October 7, 1940

APPEAL from the circuit court, Prentiss county, HON. CLAUDE F CLAYTON, Judge.

Suit upon fire policy by M. L. Shackelford against the New York Underwriters Insurance Company and another. From a judgment sustaining defendants' plea in abatement, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Sharp &amp Sharp, of Booneville, for appellant.

The circuit court of Prentiss County, Mississippi, erred in sustaining the plea in abatement filed by the appellees to the declaration of the appellant.

Code of Miss., Secs. 327, 520; Williams v. N.Y.Life Ins Co., 132 Miss. 345, 96 So. 97; Bank v. Hoyt Bros., 74 Miss. 221, 21 So. 12; Wood v. Peerey, 179 Miss. 727, 176 So. 721; Swalm v. Sauls, 141 Miss. 515, 106 So. 775; Bacon v. Gardner, 23 Miss 60; Stewart v. Petitt, 94 Miss. 769, 48 So. 5; 1 C. J. S. 1399, sec. 129; Davidson v. So. Pac. Co., 44 F. 476; Tribby v. Wokee (Tex.), 11 S.W. 1089.

The true issue before the court is whether or not an action or suit was pending in this cause at the time of the filing of the bill in the chancery court, and whether or not an action was pending in the circuit court depends upon what constitutes the beginning of an action

We have two statutes pertaining to the commencement of actions. Section 327, Code of Mississippi 1930, pertains to the commencement of an action in the chancery court. The other statute pertaining to the commencement of an action in the circuit court is Section 520, Code of Mississippi 1930.

The court has uniformly held that a suit in chancery is begun when the bill is filed.

Bank v. Hoyt & Bros., 74 Miss. 221, 21 So. 12.

This court construed Section 520, Code of Mississippi 1930, in the case of Wood v. Peerey, 179 Miss. 727, 176 So. 721, wherein the court speaking through Judge Anderson said: "What the court held in the case of Swalm v. Sauls, 141 Miss. 515, 106 So. 775-777, with reference to what constituted the begining of a suit in the chancery court, applies with equal force here. In that case the court said: 'The filing of the bill, with request for summons (which request is to be understood as having been made, if the contrary is not expressed) is such a commencement of a suit in the chancery court as to stop the running of the statute of limitations. Bacon v. Gardner, 23 Miss. 60.'"

In the present case the record shows that the plaintiff filed his declaration with the clerk of the circuit court on the 1st day of July, 1939, and asked that summons for the defendant be issued immediately and deposited with the clerk the fees required by law for the service of the process and requested that the clerk immediately issue process thereon and forward same, together with the fees required by law, to the sheriff of Hinds County, Mississippi, to be served upon the State Insurance Commissioner, the agent for service designated by the defendant, as provided by law, but through oversight the clerk failed to impress the seal of his office upon the summons, but the summons was issued and duly served as issued upon the State Insurance Commissioner, and immediately after the plaintiff learned that the clerk had omitted to place the seal of his office upon the summons, alias process was requested and same was issued and served.

The plaintiff did all that he could do and all that the law required him to do to commence his action in the circuit court, and he now contends that under the facts in this case the action was commenced and became a pending cause in the circuit court of Prentiss County, Mississippi, from the filing of the declaration, the payment of the necessary fees for service of process, and the request that summons immediately issue.

If this were not the law, litigants and lawyers could be thwarted and defeated in their efforts to obtain recourses through the court by the ignorance, neglect or misfeasance of the clerks.

We are familiar with the case of Stewart v. Petitt, 94 Miss. 769, 48 So. 5, and other similar holdings of the court, but in that cause and in other similar cases, process was not issued at the time of the filing because the plaintiff requested that summons be not issued at the time of the filing, but if we disregard the facts in that case, the plaintiff is not bound by a strict interpretation of the language used by the court in that case because the case of Wood et al v. Peerey, 179 Miss. 727, 176 So. 721, is a later case, and the facts in the Stewart case are altogether different from the facts in this case, and we concede that if the plaintiff in this case had requested process to be not issued and no process had been issued until after the filing of the petition in the chancery court, that probably the plea in abatement should be sustained.

Where it is the duty of the clerk to issue process at once, the commencement of the action will not be postponed beyond this filing of the complaint by his delay in doing so; nor will it be presumed that suit delayed was pursuant to instructions from plaintiff.

Davidson v. So. Pac. Co., 44 F. 476; Tribby v. Wokee (Tex.), 11 S.W. 1089; 1 C. J. S. 1399, sec. 129.

E. L. Joyner, of Tupelo, Floyd W. Cunningham, of Booneville, and L. Barrett Jones, of Jackson, for appellees.

Section 520, Code of 1930, requires the issuance of process immediately, and the statute further provides that if the process shall be issued the suit shall be deemed commenced from the time of the filing of the declaration, but the necessary conclusion is that process must be immediately issued in good faith for the defendant, in order that the cause may be treated as a pending one as of the date of the filing of the declaration.

When Section 520 speaks of the issuance of process, it, of course, means process issued in the manner and form required by law, in other words, the issuance of valid process.

The court has held repeatedly that where the seal is not affixed to the process, the process is void, and the defendant is not in court for any purpose.

Pharis v. Conner, 3 S. & M. 87; Burton v Cramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Mullins v. Lyle, 183 So. 696; Austin-Western Road Machinery Co. v. Webster County, 170 Miss. 601, 154 So. 723.

The court in Stewart v. Petitt, 48 So. 5, expressly recognized the rule at law, as provided in the statute, that a suit is not commenced until valid process has been issued.

The real question, therefore, is what constitutes the pendency of a prior action, so as to be the basis of a plea in abatement.

The pendency of a prior action between the same parties, involving the same subject matter, is ground for the abatement of another action involving the same parties and the same subject matter.

Gully v. Matthews, 176 So. 277; Abiaca Drainage Dist. of Leftore, Holmes and Carroll Counties, Miss., et al v. Albert Theis & Sons, Inc., 187 So. 200; 1 C. J. S. p. 50, sec. 17, and p. 61, sec. 37; 1 Am. Jur. p. 27, sec. 14, p. 29, sec. 17, and p. 449, sec. 58; State ex rel Rice, Atty. Gen., v. Large, 145 So. 346.

It, therefore, becomes necessary to determine whether the chancery suits, under the facts of this record, were pending prior to the time of the circuit court actions to which appellees plead in abatement the pendency of the chancery court suits as a prior action between the same parties, and involving the same subject matter.

The record amply shows and, in fact, counsel for appellant concede that the process issued on July 1, 1939, in the circuit court cases against appellees, had no seal affixed. Moreover, counsel for appellant concede that no alias process was issued for the appellees until September 23, 1939. There was an abortive attempt to issue an alias process on September 1st, but it was void on account of being made returnable to past date.

Counsel also concede that the chancery bills were filed on August 5, 1939, and process had on them on that date; and that the appellant, as defendant in the chancery cases, answered the said bills of complaint on August 22, 1939, and subsequently, on September 13, 1939, demurred to both bills; and that on September 25, 1939, appellees, as complainants in those bills, filed a certain motion to strike, and that on September 25, 1939, by consent of the parties, an order was entered by the chancellor setting the causes for hearing in vacation.

One thing is beyond dispute. Appellant, by both answer and demurrer not only appeared in the chancery causes filed by the appellees, but plead in bar thereto. He did not plead in abatement to the chancery bills the pendency of his circuit court actions as a prior action between the same parties, inolving the same subject matter. Moreover, after having plead in bar, he could not now plead in abatement. He is in the chancery court as completely as any defendant could possibly be, and by his answer and demurrer, he has elected to try the cause there.

That statutes prescribing when a cause of action is commenced are to be strictly complied with and are to be given strict construction is demonstrated in the case of Randall v. Bacon (Vt.), 24 Am. Rep. 100.

Counsel for appellant cite 1 C. J. S. page 1399, to the effect that the delay of the clerk in issuing process will not affect the commencement of an action, but the instant case is not one of delay, for the clerk did not delay. It is a question of whether the process, as issued, was valid or invalid, and it was clearly invalid, and so far as being the commencement of the action, it might as well not have been issued, because when the statute requires the issuance of process immediately, it means the issuance, of necessity, of valid process--that process which...