48 Miss. 642 | Miss. | 1873
This case is believed to be more complicated than difficult, and the single question, when evolved, is, in
On the 17th day of October, 1878, Mrs. K. filed in the chancery court of De Soto county, her bill of complaint against said Thomas M. Everson, her co-partner in planting, D. L. Burford, K. L. Burford, trustee, and M. A. Thornton, administrator, stating the foregoing facts, and further, that Thomas M. Everson was largely indebted to her on partnership transactions; that he had paid on purchase price of plantation only $110 ; that she was responsible for the whole amount due on the purchase, and the administrator looked to her for its payment; that she held a judgment against the estate, which she tendered and asked to have allowed in payment of her indebtedness; that the conveyance of Thomas M. Everson to Burford was fraudulent, and a cloud upon her title; and she prays for an account
The special commissioner appointed for that purpose, reported $1,696.51 due from Everson to Mrs. K. This report was confirmed, and Everson was decreed to pay that sum, or that execution issue. It was further decreed, that Burford “ pay into court, for the use of complainant, the sum of $249.50, the sum of money heretofore paid, him out of the sale of the partnership land, and to which complainant * # * is properly entitled.” This decree was rendered August 6th, 1872. From this decree, as to him, Burford appeals to this court, and the question here is, whether the decree requiring him to refund the $249.50, is erroneous ?
In elucidation of this point, the further facts may now be stated:
On the 14th day of October, 1870, M. A. Thornton, administrator of the estate of Thomas M. Everson, deceased, filed his bill of complaint against T. M. Everson, James Kersey and Elizabeth C. Kersey, his wife, to enforce payment of purchase money of plantation sold by him to the respondents, stating sale in 1867, for the sum of $2,160, one-half to be paid in cash, and the other half on a credit of twelve months; that of the one-half cash payment there was left unpaid $430, for which the parties executed their note, payable one day after date; that there was left unpaid of the purchase money, in all, $1,510, secured' by
Burford answered, asserting the bona fides of his loan to Everson and of the deed of trust, and of his ignorance of the non-payment of the whole of the cash payment on the land by Mrs. K. and Everson, and, being sworn as a witness in the cause, testified to the same facts.
The sale of the land, by order of the court, in the suit of Thornton against Everson et al., took place May 1, 1871, and sold for $2,010. The sale was confirmed, and the commissioner was directed to pay Bur-ford $249.50, the debt due from T. M. Everson. This was in August, 1871.
As before stated, the decree in the case at bar, viz., the case of Mrs. Kersey and husband against Burford, Everson and Thornton, administrator, requiring Bur-ford to refund this sum of $249.50, was rendered in August, 1872. In the case at bar, the proceedings and record in the case of Thornton, administrator, against Kersey et al., were submitted as evidence therein. Both causes were in the same court and heard by the same chancellor.
A material fact remains to be stated, viz.: that the answer of Burford, filed by leave of the court on his petition for that purpose, in the case of Thornton, administrator, against Kersey et al., was made a cross-bill, requiring answers from all the other parties, complainant and defendant, in- said cause, but that no process was ever issued thereon, nor was notice thereof ever given to or served upon Mrs. Kersey or her husband, or any of the parties thereto, so far as appears in the record, and without such process or notice the cause proceeded to a final hearing and decree in the absence and without the knowledge, so far as is shown, by the parties most interested, viz., Mrs. Kersey and her husband. And this presents the point in the case.
We are referred by the, appellant to a single rule stated in Stewart et al. v. Stebbins et al., 30 Miss. 66, viz.: that a party failing to assert a claim or allowance in a suit in equity, in which it might have been litigated with propriety, will not be permitted afterwards to enforce it in a second suit, unless his failure to do so in the first was caused by the fraud of his adversary, and was not attributed to his own negligence. The soundness of this rule is recognized, but it is believed not to apply to the case at bar, for the following, among other reasons :
1. As to the $249.50, Mrs. K. was defendant, and not claimant, in the case of Thornton against her and others. It was not for her to present,' but to resist, and therefore not her duty to bring forward in that suit the matter in controversy in this.
2. So far as she was concerned, and as far as she knew, the suit of Thornton, administrator, against her and her husband and Everson, had been concluded, and she had retired from it, supposing it to be closed by the interlocutory decree, upon her assent] as the basis of a final decree; after which, without notice to her, and without her knowledge, Burford was made a co-defendant, and allowed to file an answer, which he made a cross-bill; upon which, without process or notice to the defendants therein, the case proceeded to final decree, wherein Burford was awarded the $249.50, as before stated.
Being ignorant of the proceedings of Burford, she could not litigate this claim of his in the suit in which be preferred it, and is not, therefore, obnoxious to the rule invoked by counsel for the appellant, because the
3. Upon the cross-bill of Burford process to bring in the defendants therein was necessary. Code of 1857, art. 51, p. 548; Code of 1871, § 1030; 2 Dan. Ch. Pr. 1563; 2 Barb. Ch. Pr. 132, book 4. ch. 9, § 4; Ladner v. Ogden, 31 Miss. 332; Ward v. Davidson, 2 J. J. Marsh. 443, etc. And in the absence of process the decree was not binding on the parties not thus brought in. Tarleton v. Cox, 45 Miss. 430; Englehard v. Sutton, 7 How. 99.
In Mezeix v. McGraw, 44 Miss. 100, it is said, the chancery practice of this state requires that whenever the complainant shall file an amended or supplemental bill, he shall give notice thereof in writing to the opposite party or his solicitor, within twenty days after the same shall be filed; and no pro confesso on such amended or supplemental bill shall be taken without proof of such notice, unless process shall have been served upon the opposite party under the amended or supplemental bill. The reasons for process or notice of a cross-bill would seem to be equally, if not more, cogent than in case of an amended or supplemental bill. It is urged by counsel for the appellees, that the cross-bill was too late and the court erred in permitting it to be filed. In other words, that after the interlocutory decree, the court had not legal right and authority to allow the filing of the cross-bill. As to this point, Ave apprehend it is within the discretion of the court, doAvn to the moment of the final decree, to be exercised, however, after publication of the evidence, with great hesitation and caution.
What is said by writers on chancery practice on this subject is this: The proper time for filing a cross-bill is at the time of putting in the answer to the original suit, and before issue is joined.
When the filing of a cross-bill is delayed until after
And the court itself will, sometimes, at the hearing, in its discretion, direct a cross-bill to be filed when it is necessary to bring before the court the rights of the parties and the matters necessary to a just determination. 2 Barb. Ch. Pr. 129, 130, book 4, ch. 9, § 3. In 2 Dan. Ch. Pr., 1650, it is stated, as a general rule, that a cross-bill must be filed before publication of the evidence in the original suit, unless the plaintiff in the cross-bill will go to the hearing upon the proofs already published. Story (Eq. PL, § 395), repeating the rule stated in Daniel, adds, that “ this rule is established to prevent the danger of perjury and the subornation of perjury.” He further says: “ Publication will be enlarged or postponed for the purpose of enabling the defendant to file a cross-bill, upon special application, showing sufficient grounds to the court for making such an order.” In section 396, referring to the rule as to the time when a cross-bill must be filed, Story says: “ This rule is a restriction upon the rights of the defendant only, and not upon the authority of the court; for, when it is necessary for the purposes of justice in a particular cause, the court may afterwards direct a cross-bill to be filed.”
As the decree in the case of Thornton v. Kersey et al., awarding the payment of the $249.50 to Bur-ford, was not binding for the want of process or notice of the cross-bill, the court was at liberty, in the case of Kersey v. Burford et al., to make such disposition of this money as the facts and equity demanded. In the latter cause this matter was fully developed in the
Ordered accordingly.