State ex rel. Rice v. Stewart

• Decision Date: 02 January 1939
• Docket Number: 33292.
• Citation: 185 So. 247,184 Miss. 202
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. RICE, Atty. Gen., v. STEWART et al.

185 So. 247

184 Miss. 202

STATE ex rel. RICE, Atty. Gen., v. STEWART et al.

No. 33292.

Supreme Court of Mississippi, Division B.

January 2, 1939

Appeal from Chancery Court, Harrison County; D. M. Russell, Judge.

On suggestion of error.

Suggestion of error overruled.

For former opinion, see 184 So. 44.

W. W Pierce, Asst. Atty. Gen., J. O. S. Sanders, of Jackson, and Mize, Thompson & Mize, of Gulfport, for appellant.

Gardner & Backstrom and Chas. R. Hayden, all of Gulfport for appellees.

ANDERSON, Justice.

Appellees contend that the Court was in error in holding that the only question decided in the case of Gully, State Tax Collector, v. Stewart et al., 178 Miss. 758, 174 So. 559, was the want of authority on the part of the State Tax Collector to bring the suit; and they insist that, since the general demurrer sustained by the Chancellor in that case went to the question of whether the bill of complaint filed by the State Tax Collector stated a cause of action on the merits, the affirmance of the decree on appeal is res adjudicata of the suit now brought by the State on relation of its Attorney General for the same cause of action. It is true that the Chancellor based his decree of dismissal of the former suit both on the ground of the alleged insufficiency of the bill of complaint to state a case for relief on the merits and on the want of authority of the State Tax Collector to sue; nevertheless, the Court confined its decision on appeal, as it may do in any case in affirming a decree of dismissal, to the single proposition that the complainant in the court below was without authority to invoke the jurisdiction of the court to try the alleged cause of action. The question of whether the bill of complaint was sufficient to state a case on the merits was neither considered nor discussed in the opinion rendered therein.

Neither do we think that the opinion heretofore rendered in the case at bar is an advisory one to the extent of holding the plea of res adjudicata not well taken. Whether such plea was properly before the Chancellor or not at the time he sustained the demurrers and dismissed the bill in this cause, it is shown by his opinion in the record that his action in entering the decree of dismissal was based both on the ground that the Gully Case, supra, was res adjudicata and that the bill of complaint stated no cause of action on the merits. Appellees argued in their original brief that the decree should be affirmed on either or both of the grounds assigned, and hence no error was committed when we took cognizance of the holding of the court below in regard to the plea of res adjudicata. The case was being reversed and remanded for a trial on the merits, and the decree sustaining the plea of res adjudicata was in our opinion an error of law appearing of record, which, if adhered to on a rehearing under the assumption that the question was still an open one, would prevent a trial on the merits.

It is also urged on suggestion of error that the former decision and opinion in this case overrules the cases of Morgan et al v. Reading, 3 Smedes & M. 366; The Steamboat Magnolia v. Marshall, 39 Miss. 109; Archer v. Levee Commissioners, 158 Miss. 57, 130 So. 55; Money et al. v. Wood, 152 Miss. 17, 118 So. 357, and Rouse v. Saucier's Heirs, 166 Miss. 704, 146 So. 291; and abrogates the rule of property established under the rule announced in these cases. On the contrary, the opinion in the case at bar reviews the three...