Williams v. Doolittle
| Decision Date | 11 February 1924 |
| Docket Number | 23773 |
| Citation | 98 So. 842,134 Miss. 870 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAMS et al. v. DOOLITTLE, et al |
APPEAL from chancery court of Calhoun county, HON. J. G. MCGOWAN Chancellor.
Petition by Earl Doolittle and others against J. R. Williams and others to reestablish the record creating the Sabougla Drainage District No. 2. From findings for petitioners defendants appeal. Affirmed.
Judgment affirmed.
Creekmore & Creekmore, for appellants.
This is an appeal from a decree of the chancery court of Calhoun county entered the 9th day of June, 1923, sustaining a petition to substitute records destroyed by fire. The cause has been before this court before, being Cause No. 23,192 styled Sabougla Drainage District No. 2 v. R. N. Provine et al. When before this court before the appeal was dismissed.
Section 2514 of Hemingway's Code (section 3173, Code of 1906), is the statute under which appellees proceeded. The petition to substitute is so fatally defective when measured by this statute that it cannot support a decree of substitution based thereon even if such decree had been taken without objection and as confessed. The statute requires that all persons having an interest in the record be made parties thereto, and that the date of the respective parts of the lost record be set out, and the interest of the parties therein must be disclosed. All this must be shown by the petition itself and it must be accompanied by a copy of the record sought to be reestablished in all material particulars.
The petition complies with none of these statutory requirements. This petition fails to name any person other than the three commissioners, as parties thereto, and does not show that any other persons have an interest in the record, nor does it disclose what the interest of any of the parties is. It is true that the petition says that the commissioner and also the other landowners in the district are interested in the restoration of the papers, but it wholly fails to show who are the other landowners, but seeks to avoid this statutory requirement by a statement that the "names of the landowners, etc." are disclosed by certain papers alleged to be attached.
The decree based on this petition is one on a petition to which no persons are made parties defendant and wherein none of the statutory requirements are complied with.
The petition prayed for according to law for all parties interested but did not name such parties nor did they get process according to law as provided by the statute just quoted. The process consists wholly of a summons in due form of law for the appellant's and a publication made two times, less than twenty-one days before the first day of court, and addressed to all persons owning land, etc. The process did not issue as in other cases, and unknown and non-resident defendants were not made parties by publication as in chancery.
A motion was made to quash this process and its sufficiency was thereby challenged, and although there was a total failure to comply with the plain statutory requirements as to process, the court below overruled the motion to quash. This was done by the court below not because it was thought by him or contended by the appellees that they had complied with section 2514 of Hemingway's Code, but on the theory that the requirements of chapter 195 of the Laws of 1912, as to notice of different proceedings under that chapter, was controlling on the petition to substitute the record.
It seems to us this court necessarily held in overruling the motion to dismiss the appeal that section 2514 of Hemingway's Code was controlling when petition was filed to substitute the record and not the drainage act under which the proceeding originally began. If the record sought to be re-established by this proceeding is considered as a pending suit then section 2516 of Hemingway's Code (section 3175 of the Code of 1906), applies. This section differs from section 2314 only in that the process may be returnable on any day of a term of court and may be served on the attorney of the party defendant to the petition.
The proceeding in which the record was sought to be re-established is and was in some respects a pending cause, but certain orders, which had been entered therein, were final judgments as much as if nothing further was to be done in the cause in so far as the fixing of the rights of parties is concerned.
We are not unmindful of the fact that all courts of record have the inherent power to re-establish records when lost or destroyed, but the statute having marked out the method of such re-establishment such method must be followed and is the exclusive way.
The applicable statutes have been construed by this court in Johnson, Revenue Agent, v. Ritchie Land, etc., Co. et al., 88 So. 634. See, also, 15 C. J. 980, and note 85; State v. Ireland, 41 L. R. A. (U.S.) 1079 and note; Ann. Cas. 1913E, 604; Helm v. State, 67 Miss. 562, 7 So. 487.; McGuire v. State, 78 Miss. 504, 25 So. 495.
W. J. Evans and Stone & Stone, for appellees.
The petition filed meets all the requirements set out by section 2514 of Hemingway's Code. Note the decree of the chancellor in his finding in detail that the petition and the showing made under the same met all these requirements. All the objectors, the appellants here, were served with a separate summons and the only objection worthy of any notice is that the other defendants to the petition were not served with separate summons but were summoned according to the requirements of the drainage chapter under which this pending cause was operating. It will be obvious, of course, to the court that while we depended then and depend now on the process according to the drainage chapter, we went to the trouble of having personal service on the three men who had all along been contesting the district. The decree of the chancellor held the petition to be according to the requirements of the law and re-established the record and ordered an engrossed copy made of the same.
Our case can be stated almost in a single sentence; here was a drainage district that had been organized by the chancery court of Calhoun county, Mississippi, embracing lands in Calhoun county, and Webster county, and the law plainly providing as to process the publication of notice for two weeks in a newspaper. When we went to get process under the petition to re-establish the record we find the provision in section 2514, "process shall issue as in other cases," and the question in this lawsuit is what construction to put on that phrase.
It is true that at the time this statute was written and more so now, since the organization of the drainage districts, road districts, and so many bodies provided for by recent legislation, that there is more than one kind of process; that is, there is no set rule of process that will fit every case; and, therefore, we took the view, and this was concurred in by the chancellor in his decree, that this should properly be read "process shall issue as in other like cases." This was, let it be remembered, a pending cause under the drainage law for process such as was had under this petition, and that process was returnable to the first day of a regular term of court. We did not depend one motion and on the well-recognized inherent power of a court of record to re-establish its papers; we did not depend entirely on the fact that this case had come back from the supreme court on a mandate, and that at the next regular term it would be on the docket for trial, if requested to be set down for a hearing; we proceeded to regularly issue the process as provided by the drainage law, the law under which this district was organized, and also we had regular summons directed to the three contestants.
We had confidence in our position and all the authorities that we are going to cite and all the rules of judicial construction, and plain common sense seems to us to unqualifiedly indorse our position, still we have found it impossible to get a case in point. We have authority that seems to us to unmistakably affirm our position but no situation exactly similar to the one we have in hand has been found by us after tedious search. Tracing this section back, see section 2293 of the Code of 1880, and West v. Smith, 65 Miss. 394, 4 So. 340.
Now this section was not brought forward in 1892 but section 2793 was enacted originally in the Code of '92 and perpetuated in section 3176 in the Code of 1906, and section 2514 of Hemingway's Code. These later statutes are practically a re-enactment of the old provision in the Code of 1880, and while they are more comprehensive in their terms generally and provide a more complete scheme, but their statement as to process is, while not in conflict with the provision in 1880, we think not so clearly stated on its face.
We beg to call attention to Brown v. McLauflin, 45...
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