Carter v. Kimbrough

84 So. 251 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

We deem it unnecessary to notice each ground of the demurrers filed by each group of defendants, nor do we deem it necessary to take up the demurrers specifically as to each group of defendants. We think the demurrers were rightfully sustained upon at least two grounds in the case of- each, to wit: That the bill of supplement and revivor contained no equity, considered apart from the original bill; and, second, that the bill was multifarious as to all parties.

The bill sought to recover specifically against the receivers, as receivers for moneys paid out, and for negligence in failing to perform certain duties as receivers. It sought to recover against the receivers all sums of money lost by the bank prior to their appointment. It sought to recover from the defendants, not only the claims allowed by the chancellor and referred to a master for determination and report, but also for amounts alleged to have been lost, bnt which had been adjudicated against them by the chancellor in the first decree. It sought to set aside numerous conveyances made by the defendants, some of which antedated the decree rendered in the case denying the rights claimed, which decree the chancellor in express terms made final as to such defendants and such claims.

■ It was insisted by the appellants that the chancellor’s judgment dismissing the suit as to claims prior to the death of B. T. Kimbrough, and dismissing the claims not referred to the master, is an/ interlocutory decree which may be corrected or modified after the expiration of the term at which rendered.

This contention is not only contrary to the express recitals of the decree as to those claims, but it is perfectly evident that the decree dismissing the bill as to those claims and persons' is final in its very nature. There was nothing further to be done, considered, or adjudged with reference to those claims.

It is well settled that a chancery court has no power, after the expiration of the term at which the decree is rendered, to set aside a decree where the matter is completely disposed of. The decree then rendered can only be corrected by an appeal or by a bill of review. Sagory v. Bayless, 13 Smedes & M. 153; Shirley v. Conway, 44 Miss. 434; Lane v. Wheless, 46 Miss. 666; Le Blanc v. Railroad, 73 Miss. 463, 19 So. 211.

The so-called bill of supplement and revivqr does not conform to the law upon those subjects. In order to file a supplemental bill, it must be shown that the matter relied on as supplemental has arisen since the commencement of the original suit; or that the facts have become known to the complainants in such way that they could use them, since the cause has passed the stage in which he might have applied for leave to amend; or that they had been prevented, by inadvertence, mistake, or some other cause specifically shown, from availing themselves of the matter proposed to he shown at the proper stage of the case; and the supplemental bill must be confined to such matter. It cannot be filed after the dismissal of the bill except as to matters necessary to carry out the decree rendered.

In so far as the question of a revivor against a personal representative of W. L. .Goodwin is concerned, we think it is necessary to make the executor or administrator a party so as to bind the ' estate of Goodwin. There are many and obvious reasons why this is true. The administrator or executor having control of, and access to, all the books, papers, and property of the decedent, and representing creditors as well as the deceased, would be better able to defend or prosecute the suit and produce appropriate evidence. “While a creditor may sue a person who assumes to act as executor or administrator, without authority of law, for such property as he may have disposed of, which the creditor had a right to subject to his demand, still this will not dispense with having an executor or administrator made a party in reviving a suit pending against a defendant at the time of his death. However, the bill as it effects the estate of Goodwin is multifarious, as well as defective in the respect above mentioned.

In Darcey v. Lake, 46 Miss. 109, it is said: ‘"‘By multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters, and. thereby confounding them. Wdien tested by this rule, the bill in this1 case will be found to be multifarious. (1) It is a bill to foreclose a mortgage for the benefit of the complainants. (2) It is a creditor’s bill, seeking to have the estate of their deceased debtor administered and distributed in a court of equity. (3) It seeks, on the part of creditors at large, to set aside a conveyance of real estate, alleged to be fraudulent as to them.”

The alleged hill of revivor and supplement, as to Goodwin’s estate, seeks to establish against him as to the matter referred to the master by the chancellor, and as to matters adjudged favorably to him by the chancellor in the decree dismissing the bill as to certain claims, and to have an accounting between Brown and. Goodwin, and to have a discovery from the Bank. of Oxford, and seeks to set aside numerous sales and conveyances alleged to be fraudulent.

In Roberts v. Starke, 47 Miss. 257, it is said: “It is difficult to lay down any universal rule as to what constitutes multifariousness in equity pleadings. Each case must be determined very much on its own circumstances.”

Again: “Where a bill combines separable subjects, demands different modes of relief against defendants not having a community of interest in all or any of the subjects, and against whom the complainant does not assert a common right, a demurrer to it should be sustained.”

In Thoms v. Thoms, 45 Miss. 203, it was held that— “A bill of complaint by a wife, praying forjan account against her husband for her separate property used by him, preferring her claim for alimony and maintenance, and seeking to enforce the wife’s supposed rights touching the homestead, unites in it incongruous subjects for relief, and is multifarious and demurrable.”

See, also, Banking Co. v. Humphries, 64 Miss. 258, 1 So. 232; Hardie v. Bulger, 66 Miss. 577, 6 So. 186.

In McNiell v. Burton, 1 How. 510, it is held that a complainant cannot demand in the same bill several distinct matters against several defendants; that the defendants must have a common interest in the same subject in relation to which relief is sought.

In Boyd v. Swing, 38 Miss. 182, the sixth syllabus says: “Where there is no privity between the defendants, each being; an entire stranger to the liability of the other, and sought to be charged on different grounds, and for different amounts, they cannot be properly joined in the same bill; and hence a bill cannot be maintained against a surety of a collector who is liable only for the principal and interest of the trust fund, and also against a person who, upon the death of the collector, has succeeded to his estate, and who is sought to be charged for the profits made, by the use of the trust funds, by the collector in his lifetime, and by him since the collector’s death.”

This case has been cited with approval in Selleek v. Compress Co., 72 Miss. 1024, 17 So. 603. See, also, McGowan v. McGowan, 48 Miss. 553; Jones v. Foster, 50 Miss. 47; Guess v. Strahan, 106 Miss. 1, 63 So. 313.

What has1 been said is applicable to each of the demurrers on the ground of multifariousness.

After the complainants shall have recovered judgment for whatever may be found due on the claims referred to the master, if any of the persons against whom judgment may be rendered shall be or become insolvent so that the judgment cannot be collected, it may be that separate bills could be filed to set aside conveyances made by such parties, but we do not think that such suits should be maintained in the present bill, and especially so where no allegations of the insolvency of the estate or person is alleged.

The judgment will therefore be affirmed.

Affirmed.