78 Miss. 235 | Miss. | 1900
delivered the opinion of the court.
Nelson T. Burroughs filed his bill in the chancery court of
_ Craig, we think, is a necessary party to the proceedings. His rights under his contract of purchase cannot be adjudicated in a proceeding to which he is not a party. Jones succeeded to Craig’s interest in the property, and in the solution of that question Craig should be heard. It is admitted that since the suit began Craig has tendered to Burroughs all the purchase money due for the tract of land, and has demanded a deed for it, and that he has pending in the chancery court of Sunflower county a bill against Burroughs for a specific performance of said contract, then the deed of trust made to Leigh will be a valid security upon the premises; and this demonstrates the necessity of having Craig made a party to any proceeding which is to settle the rights of all the parties to this controversy. See 15 Enc. Pl. & Prac., 581, and notes; Lemmon v. Dunn, 61 Miss., 210. We express no opinion upon the question of forfeiture insisted upon by Burroughs, for until Craig is made a party, such matter should not be determined. We think the chancellor should have permitted complainant to amend his bill by making Craig a party thereto, if he so desires;, otherwise, to dismiss his bill. In order that Burroughs may amend his bill, if he wishes to do so, the decree of dismissal is reversed, the injunction is restored, and leave given to complainant to amend his bill within thirty days after the filing of the mandate in the court below.
After the delivery of the foregoing opinion, the following suggestion of error was filed by Baker & Moody, attorneys for appellee.
We desire to call your honors’ attention to the fact that
We think we have made it perfectly clear that there was no-error made by the court below in dismissing the complainant’s bill, and being none, it seems to us equally clear that this court has erred in reversing the case. The case is not reversed because of the action of the court below, for the opinion itself says that unless Craig is made a party, the bill should be dismissed. The lower court’s action therefore was correct. .Craig was not a party, nor was leave to make him one refused, because no such leave was asked. The court below could not make him a party of its own motion, or if it could the failure so to do was not error. Upon what theory, then, is this case reversed ? We recognize the rule that where an appellate court reverses the decision of the lower court it is not uncommon to-direct the latter to allow amendments, but we insist it is not the practice to reverse a judgment when no error is found therein, simply to give a party an opportunity to make amendments which he did not ask for in the course of the proceedings. In some of the states the rule is to the contrary, but it is so because the statute expressly confers such power upon the court. We call your attention on this point to 1 Enc. Pl. & Prac., pp. 617, 618, and cases cited.
In conclusion, we desire to call your honors’ attention to this consideration. The defendants (appellees) had not the right to amend the complainant’s (appellant’s) bill. All they could do was to raise the point — bring it before the attention of complainant and the court — and if an amendment was necessary let-the complainant do it. ' They were not negligent, and yet, because the complainant did not see proper to ask that the amendment be made, they must be mulcted in the costs of this appeal. It seems to us, therefore, that inasmuch as there was no error in the action of the court below, the judgment should be-affirmed.
delivered the opinion of the court in response to the suggestion of error.
If appellant should have had opportunity in the court below to amend his bill, and had refused or neglected to do so, we should affirm the decree. But the case was decided in the court below upon its merits, and without any suspicion on the part of the plaintiff that there was defect of parties. We here, on-appeal, refuse to consider his case upon its merits or to review the decision of the chancellor because y^e think all necessary parties have not been brought before the court. It would be unfair to the plaintiff to turn him out of court without an opportunity to present his case upon its merits, when a decision upon its merits is first refused for want of necessary parties in the appellate court.
The suggestion of error is overruled..