69 So. 710 | Miss. | 1915
delivered the opinion of the court.
' Appellee issued its fire insurance policy to Warren-Gee Lumber Company on property owned by it, to which is attached a loss payable clause in favor of G. L. Hawkins, trustee; he having a lien on the property
“If in any action, duly commenced• within tbe time allowed, tbe writ shall be abated, or tbe action otherwise avoided or defeated, by tbe death of any party thereto, or for any matter of form, or if, after verdict for tbe plaintiff, the judgment shall be arrested, or if a judgment for tbe plaintiff shall be reversed on appeal, the plaintiff may commence a new action for tbe same cause, at any time within one year after tbe abatement or other determination of tbe original suit, or after reversal of tbe judgment therein; and bis executor or administrator may, in case of bis death, commence such new action, within tbe said one year.”
The facts embodied in tbis replication and exhibits thereto are substantially tbe same as set forth in Scottish Union & National Insurance Co. v. Warren-Gee Lumber Co., 103 Miss. 816, 60 So. 1010, and 61 So. 430, wherein
It will be observed from this statement that in the former suit several causes of action were combined, one of which was the right of appellants to collect from appellee the amount of the insurance policy here in question; and the relief sought was that each should be decreed a proportionate part thereof or — to be more accurate — a proportionate part of the amount due by all the companies on account of the destruction of the property covered by the policies. This being true, in so far as appellee is concerned the cause of action here sued on is, within the meaning of section 3116 of the Code, the same as the one involved in the former suit. All that was sought to be recovered of appellee in the former suit was the amount ■due by it under its policy, and that is all that is sought to be recovered here; the only difference between the decree sought in the former suit and the judgment here sought is that in the former the court was requested to decree specifically the proportion of the amount due which ■should be paid to each of the appellees, while here the effort is to obtain a judgment that the entire amount be
Reference in this connection is made by counsel for appellee to the fact that to several of its pleas setting up alleged breaches of various clauses of the policy by Warren-Gee Lumber Company appellant Hawkins by demurrer and replication claims that by reason of his independent contract under the loss payable clause he is not affected thereby. That issues have thus arisen between appellee and only one of appellants is not material, for they were-a part of the issues involved in the former action.
The argument advanced in support of the second ground upon which it is sought to uphold the judgment of the court below is that the former action was instituted in a court not having jurisdiction of the subject-matter thereof, and consequently was not duly commenced within the meaning of the statute relied on. While the court in which the former suit was instituted should not have tried it over the protest of appellees herein, for the reason that the cause was not one of equity cognizance, still it cannot be said with accuracy that it was without jurisdiction so.to do, for section 147 of our Constitution practically “sweeps away all distinction between equity and common-law jurisdiction, after it has been entertained, in a civil cause in the chancery or circuit court,” so that the decree rendered by it, the chancery court of Forrest county, was valid until reversed on appeal (Whitney v. Bank, 71 Miss. 1009, 15 So. 33, 23 L. R. A. 531), which reversal depended on the view this court would take of a doubtful question of jurisdiction. The ground upon which the decree was reversed was that the cause was not one of equity cognizance, and since the form in which the action was brought — that is, combining a number of sep
But we do not understand that the action which was dismissed, in order to he duly commenced within the meaning of the statute, must necessarily have heen commenced in a court having jurisdiction of the subject-matter. On the contrary, we think one of the designs of the statute, with which section 147 of the Constitution is in keeping, is to protect parties who have mistaken the forum in which their causes should he tried, who simply entered the temple of justice hy the door on the left, when they should have entered hy the door on the right. In the language of the supreme court of West Virginia, in Tompkins v. Pacific Ins. Co., 53 W. Va. 484, 44 S. E. 441, 62 L. R. A. 489, 97 Am. St. Rep. 1011:
“It is a highly remedial statute and ought to he liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited hy law from loss •of his right of action hy reason of accident or inadvertence, and it would he a narrow construction of that statute to say that because, if plaintiff had, hy mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it. ”
Of course, good faith in the institution of the action ■dismissed is an element in determining the right to invoke the statute, and, as was said by the supreme court of the
“Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace.”
Statutes similar to the one here in question seem to have been enacted in most, if not all, of the states; but the only ones which have been called to our attention in which it is provided' that the action must be duly com! meneed are those of Rhode Island and Massachusetts, and in each of these states it seems uniformly to have been held that a cause dismissed for want of jurisdiction is within the statute. It is true that in all of the cases from those states which have come under our observation the defect in jurisdiction because of which the causes were dismissed related to the parties, and not to the subject-matter. Nevertheless those cases are here in point, for a court is just as powerless to render a valid judgment when without jurisdiction of the person as it is to render such a judgment when it is without jurisdiction of the subject-matter. Gwin v. McCarroll, 1 Smedes & M. 351; Wright v. Weisinger, 5 Smedes & M. 210; Miller v. Ewing, 8 Smedes & M. 421.
Moreover in Taft v. Stow, 174 Mass. 171, 54 N. E. 506, the supreme judicial court of Massachusetts, in 'construing a statute similar, though not identical, -with the one here in question, in that it. did not require the first action to be duly commenced, held that the dismissal of an action for want of jurisdiction of the subject-matter was a dismissal for matter of form, and we do not understand counsel for appellee to, and they could not successfully, contend that an action defective only in matter of form was not duly commenced within the meaning of the stat
“Where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute shall not prevent him from doing so, provided he follows it promptly, by suit within a year.”
We have not invoked the case of Weathersly v. Weathersly, 31 Miss. 662, as authority for the ruling here made, for the reason, as pointed out by counsel for appellee, the statute there construed did not require that the action dismissed should have been duly commenced, and therefore it is not necessarily conclusive of the question here involved.
Reversed and remanded.