Shaw v. Laurel Oil & Fertilizer Co.

• Decision Date: 23 March 1908
• Docket Number: 13,170
• Citation: 92 Miss. 340,45 So. 878
• Parties: WALTER SHAW v. LAUREL OIL & FERTILIZER COMPANY
• Court: Mississippi Supreme Court

45 So. 878

92 Miss. 340

WALTER SHAW v. LAUREL OIL & FERTILIZER COMPANY

No. 13,170

Supreme Court of Mississippi

March 23, 1908

FROM the circuit court of, second district, Jones county, HON ROBERT L. BULLARD, Judge.

Walter Shaw, an infant, suing by his father as next friend appellant, was plaintiff in the court below, and the Laurel Oil & Fertilizer Company, appellee, was defendant there. From a judgment in favor of the defendant the plaintiff appealed to the supreme court.

In 1905 the plaintiff sued defendant company to recover for injuries received while an employe of defendant. To this declaration the defendant demurred because the declaration showed that the injury was in part sustained through plaintiff's own negligence and in part through the fault of his fellow servant. The demurrer was confessed by the plaintiff and sustained by the court as confessed, and thirty days after adjournment of the term was granted plaintiff to file an amended declaration. At the same term of court, on defendant's motion the plaintiff was required, under Code 1892, § 862, to give security for costs. One year afterwards at a term of the court the cause was dismissed because plaintiff had failed to give security for costs.

Subsequently and after the dismissal, the plaintiff instituted a new suit against defendant, predicated of the same cause of action. To this new suit the defendant pleaded res judicata, setting up the action of the circuit court in sustaining the defendant's demurrer in the former suit and the failure of the plaintiff to amend. The plaintiff filed a replication to the plea, substantially pleading nul tiel record.

Affirmed.

Shannon & Street and Alexander & Alexander, for appellant.

It is unnecessary to discuss the effect of sustaining a demurrer and dismissing the suit because of plaintiff's failure to amend his declaration. In this case the former dismissal was for the sole reason that the plaintiff did not give the required security for costs; and the judgment so recites. The question, then, is whether a dismissal for inability or even refusal to give security for costs is such a judgment on the merits as to be res judicata.

The law is generally found to be what it ought to be. It ought not to be that a poor person who sued to establish a right and is confronted by an order for security for costs, and who is without solvent friends to become sureties on his bond, or who is too self-respecting to make proclamation of his poverty, should be barred from the courts except by lapse of such period as bars all litigants. It does not consist with that regard and consideration shown by our laws and courts to the weak and destitute to say to them when they sue, that because they are unable to pay costs or secure their payment, they cannot subsequently sue when they are able to find security. No one would expect such to be the law.

No judgment or decree is ever res judicata unless it be on the merits. The merits must have been actually or necessarily involved. Agnew v. McElroy, 10 Smed. & M., 552; Johnson v. White, 13 Smed. & M., 584. A dismissal for failure to prosecute is not a bar to a subsequent salt. Baird v. Bardwell, 60 Miss. 164; Clay County v. Chickasaw County, 63 Miss. 289; 24 Am. & Eng. Encyc. of Law (2d ed.), 804.

It is true that when a dismissal is had for cause and the term expires, it is a final disposition of that particular case. The case is off of the docket, and cannot at a subsequent term be revived. Such is the holding of Hurst v. Griffin, 49 Miss. 742, and of American Burial Case Co. v. Shaughnessy, 59 Miss. 396. But we have here in the present case no revival of the former suit. That suit is off of the docket, and the plaintiff is liable for the costs therein accrued. Whether he be able or not to pay the costs, the legal liability to pay the same is upon him. But this present case is a new suit, and nothing but a previous judgment on the merits will bar the same.

It would be a reproach to our laws and courts if one who has to suffer a discontinuance because temporarily unable to give security for costs should be deprived forever of his day in court. Defendant was not content, in the former suit, with having its demurrer sustained. It at once interposed a motion, and secured order thereon, for security for costs. This action put it beyond the power of the plaintiff to file an amended declaration until the security should be furnished or affidavit of poverty be filed. Had plaintiff tendered an amended declaration, the clerk of the circuit court would have had the right to refuse to file it. Indeed, we think he would have been under the duty to refuse to file it. Code 1592, §§ 861, 862; Code 1906, §§ 939, 940. The order for security for costs stops all proceedings until the order be complied with, and no more steps can be taken and no more costs be incurred. Yet, here the defendant demurs and requires a new declaration and, at the same time, gets an order for costs which effectually prevents the filing of an amended declaration under the circumstances.

A dismissal not on the merits amounts to an involuntary discontinuance. Defendant is no longer bound to attend on the suit. But it does not prevent a new suit. Hunt v. Griffin, supra; 2 Am. & Eng. Encyc. of Law (2d ed.), 808.

R. E. Halsell, for appellee.

The court below was correct in sustaining the defendant's plea of res judicata. Weathersby v. Pearl River Lumber Co., 88 Miss. 535, 41 So. 65. See also Straw v. Illinois Cent. R. R. Co., 73 Miss. 447, 18 So. 847, wherein it is stated by this court, that a judgment in a court of competent jurisdiction, in an action to recover for personal injury, sustaining a demurrer to the declaration, and dismissing the action, on the ground that the declaration showed the plaintiff to have been guilty of contributory negligence, is an adjudication, and bars a second action for the same injury.

As to the effect of the dismissal of a suit for failure to give security for costs, see American Burial Case Co. v. Griffin, 59 Miss. 398; Hunt v. Griffin, 49 Miss. 742.

The second declaration is based upon the same cause of action as the first and the judgment of the court below should be affirmed, since one of the grounds of defendant's demurrer to the first declaration was plaintiff's contributory negligence.

Green & Green, on the same side.

The basis of res judicata, which is a favored plea at law, is accurately set forth in 24 Am. & Eng. Encyc. of Law (2d ed.), 713. It is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which make it to the interest of the state that there should be an end to litigation: interest reipublicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause: nemo debet bis vexari pro eadem causa. A contrary doctrine would subject the public peace and quiet to the will or neglect of individuals, and prefer the gratification of a litigious disposition on the part of suitors to the preservation of the public tranquility and happiness.

Counsel for appellant wholly misconceive the former record, and seemingly attach no importance to the sustaining of the demurrer and the granting to the plaintiff of a limited period of thirty days within which to amend his declaration, in the former suit. They fall to give this judgment in the former suit even the scantiest consideration. Yet this judgment was rendered by a court of competent jurisdiction in a pending cause between these identical parties and upon issue joined; and the effect of such a judgment, unappealed from, unreversed and still in effect, has been determined already by this court. Weathersby v. Pearl River Lumber Company, 88 Miss. 535, 41 So. 65; Straw v. Illinois Central R. R. Co., 73 Miss. 446, 18 So. 847; Jacobs v. Insurance Co., 71 Miss. 656, 15 So. 639.

In the case of Weathersby v. Pearl River Lumber Co., supra, a suit in chancery was brought in the year, 1900, and the bill was demurred to for different causes. The demurrer was sustained, the decree of the lower court reciting that "it is ordered by consent that the demurrer be sustained and the bill be dismissed, and that the complainant have sixty days in which to file amended bill if he so desires." There the litigation ended; no amended bill having ever been filed or sought to be filed by the complainant. But a new bill was filed nearly five years afterward. And, on appeal, CALHOON, J., stated that the decree in the former suit "was a final adjudication of what was pleaded or might properly have been pleaded in that cause."

In Straw v. Illinois Central R. R. Co., supra, WOOD, J., said "A judgment on demurrer, going to the merits of the action, is as perfect bar to a second suit on the same demand or cause of action, as a judgment on a verdict finding all the facts. This proposition is fundamental in the present case, and is elementary. We understand that there is no disagreement between counsel...