Solomon v. Continental Baking Co

• Decision Date: 09 March 1936
• Docket Number: 32100
• Court: Mississippi Supreme Court
• Parties: SOLOMON v. CONTINENTAL BAKING CO

165 So. 607

166 So. 376, 174 Miss. 890

SOLOMON v. CONTINENTAL BAKING CO

No. 32100

Supreme Court of Mississippi

March 9, 1936

Division B

January 27, 1936

Suggestion Of Error Overruled February 17, 1936.

APPEAL from the circuit court of Coahoma county HON. WM. A. ALCORN Judge.

Action by Annie P. Solomon against the Continental Baking Company. From a judgment dismissing the action without prejudice, the plaintiff appeals. On motion to dismiss appeal. Motion overruled.

On merits, reversed and remanded.

See also, 172 Miss. 388, 160 So. 732.

Reversed and remanded. Motion overruled.

Brewer & Montgomery, of Clarksdale, for appellee, on motion to dismiss.

It appears from the order that Mrs. Annie P. Solomon, appellant, has no interest of any kind in the subject-matter of the litigation, and nowhere in the record does it appear that she is appealing or attempting to appeal on behalf of or for the use and benefit of the General Exchange Insurance Company.

If Mrs. Solomon, individually, has no right to the subject-matter of the litigation, then she has no right to an appeal, because she has lost nothing by the order from which she is attempting to appeal. The order is not final; but even if it were final, Mrs. Solomon would have no right to complain.

Section 18, Code of 1930; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124; R. R. Co. v. Williams, 109 Miss. 549, 68 So. 776.

A final judgment within the meaning of the statute is a judgment adjudicating the merits of the controversy. In the present case, the circuit court decided nothing on the merits, and the judgment appealed from is not a final judgment within the statute.

R. R. Co. v. Williams, 109 Miss. 549, 68 So. 776; Bank v. Long Creek Drainage District, 133 Miss. 531, 97 So. 881; Dunagin v. National Bank, 118 Miss. 809, 80 So. 276; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124.

E. W. Smith and Pat D. Holcomb, both of Clarksdale, for appellant, on motion to dismiss.

Section 505 of the Mississippi Code of 1930, positively and unequivocally grants the right to an assignee to begin, prosecute, and continue an action in the name of the original party, assignor, and by that right is necessarily embraced that of an appeal to the Supreme Court.

Ridgeway v. Jones, 122 Miss. 631, 84 So. 612; Bolivar Compress Co. v. Mallett, 139 Miss. 213.

The order of the court brings this case clearly within the purview of section 13 of the Mississippi Code of 1930; for it was an involuntary dismissal and a final adjudication of the rights of the parties to the record, and as announced in 3 C. J., sec. 258, page 445, "It has also been held that the question of whether a judgment, order or decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on a consideration of the essence of what is done thereby, or by its effect upon the rights of the parties."

The order certainly terminates the litigation between the parties on the merits, for it is a final dismissal without the consent of appellant, and a compulsory nonsuit, and there was nothing more for the plaintiff to do. Of course, another party could have been brought in, but, as is reflected by the record, the order is a final judgment as between the appellant and appellee.

Anderson v. Henderson, 103 Miss. 211, 60 So. 137; Gill v. Jones, 57 Miss. 367; Ewing v. Glidwell, 3 How. 332, 34 Am. Dec. 96; Jacobs v. New York Life Ins. Co., 71 Miss. 656; Feed Milling Co. v. Warren County, 159 Miss. 167; Davis v. Jennings, 111 N.W. 128.

E. W. Smith and Pat D. Holcomb, both of Clarksdale, for appellant.

The lower court erred in overruling plaintiff's motion to strike the notice under the general issue and in holding that the General Exchange Insurance Company, assignee, was unauthorized by section 505 of the Mississippi Code of 1930 to begin, prosecute and continue this cause in the name of the plaintiff, the assignor.

It is respectfully submitted that section 505 of the Mississippi Code of 1930, positively and affirmatively grants to the assignee the right asserted here, and, too, the defendants could not complain by the plea, which in reality was in abatement, and was filed after the plea of general issue.

Rice v. Patterson, 92 Miss. 666; Kelly v. Continental Casualty Co., 87 Miss. 40, 40 So. 1; Bolivar Compress Co. v. Mallett, 139 Miss. 213; Ridgeway v. Jones, 122 Miss. 631, 84 So. 612.

It is respectfully urged that the sole purpose of the defendants was to bring to the attention of the jurors evidence of insurance, which was highly prejudicial in such a controversy, and that the mention of insurance would alone have been a reversible error.

Herrin v. Daly, 39 So. 970, 80 Miss. 340; Williams v. Karkin, 166 Miss. 837; 8 R. C. L. 557, sec. 108; Kelly v. Continental Casualty Co., 87 Miss. 40, 40 So. 1.

The lower court was without authority to dismiss this law suit on motion of the defendant because of the refusal of the plaintiff to accede to the defendant's request to amend their pleadings, for the nature of the plea was the disability of the plaintiff and not in bar of the right.

Sections 505 and 532, Code of 1930; Moore v. Knox, 46. Miss. 602.

Brewer & Montgomery and Charles A. Sisson, all of Clarksdale, for appellee.

The notice under the plea was filed in conformity with section 514 of the Mississippi Code of 1930.

It does not appear from the face of the amended declaration on file in the cause that there was a nonjoinder of plaintiffs. This being true, appellee strictly complied with the law and gave written notice as required. It has been many times held by this court that before a defendant can avail himself or itself of nonjoinder of plaintiffs section 514 must be complied with.

Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79; McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264; Wells v. Railway Co., 96 Miss. 191, 50 So. 628.

The General Exchange Insurance Company, in the absence of compliance with section 507, is a necessary party. It is the sole owner of any cause of action that might exist as a result of the collision involved in the present case. As the record now stands the General Exchange Insurance Company is not a party to this suit and the court is powerless to enter any judgment which would be binding on it.

Upon appellee's motion the General Exchange Insurance Company should have been made a party plaintiff in the absence of compliance with section 507.

McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264.

The lower court properly gave the appellant an opportunity to amend her declaration so as to make the General Exchange Insurance Company a party plaintiff. Upon the plaintiff's, or appellant's, refusal to so amend, the court properly entered a nonsuit without prejudice.

McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264; Ham v. Kings Daughters, 170 Miss. 490, 155 So. 164; Smith v. Denny & Co., 90 Miss. 434, 43 So. 479; Burroughs v. Jones, 78 Miss. 235, 28 So. 944; Lemmon v. Dunn, 61 Miss. 210.

It is submitted that the appellee followed the course under the statute by complying with sections 514 and 536 of Code of 1930, which, when considered with sections 505 and 507, was the only proper course that appellee could take and protect itself from the possibility of a double recovery for the same cause of action; and that the learned lower court properly ruled.

ON MOTION TO DISMISS.

Ethridge, P. J., Smith, C. J., delivered the opinion of the court on motion to dismiss.

OPINION

Smith, C. J.

The appellant, the plaintiff in the court below, sued the appellee for damages resulting from a personal injury alleged to have been sustained by her, because of the negligence of one of the appellee's servants. On motion of the appellee, the court below dismissed the cause; its judgment reciting that "the plaintiff in the absence of the jury having admitted that the right for damage arising out of the accident set forth in the declaration herein had before the institution of this suit been assigned to the General Exchange Insurance Company, and the defendant having moved the court to require the plaintiff to amend her pleadings herein to show said fact upon penalty of the dismissal of this suit, and the court having required the plaintiff to make said amendment and the said plaintiff having refused to do so, but electing to prosecute this cause in the name of the plaintiff alone, and the court being being of the opinion that the motion of the defendant that this cause be dismissed should be sustained by reason of the failure on the part of the plaintiff to amend the pleadings herein, it is, therefore, accordingly ordered and adjudged that this cause be and the same is hereby dismissed without prejudice."

The appellee has filed a motion to dismiss this appeal on two grounds:

(1) The order of the circuit court of Coahoma county, Mississippi, upon which this appeal is based, shows from its face that appellant, Mrs. Annie P. Solomon, has no right, title, or interest in and to the subject-matter of litigation.

(2) It affirmatively appears from the order appealed from that the case was dismissed without prejudice, and therefore there is no final judgment in the case from which an appeal can be prosecuted.

The first of these grounds relates to the merits of the case determinable, not on a motion to dismiss, but when the court comes to the consideration of the assignments of error. State v. Woodruff, 83 Miss. 107, 35 So. 422.

Second the appellee says that the dismissal of a case without prejudice is not a final judgment within the meaning of section 13, Code 1930, which provides that "an appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case,...