170 So. 2d 564 | Miss. | 1965
This case is before us on appeal by W. Arlington Jones from a judgment of the Circuit Court of the Second Judicial District of Jones County overruling the appellant’s motion for permission to intervene as a party in interest in Cause No. 7226, as shown on the general docket of said court, styled Charles Oree Williams Jr. v. Index Drilling Company, Inc., or in the alternative for an adjudication, before trial, of the appellant’s interest in the plaintiff’s claim against Index Drilling Company for damages for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of one of Index Drilling Company’s truck drivers in the unloading of two metal pipe racks and other oil well equipment.
The record shows that the plaintiff Charles Oree Williams Jr. was 18 years of age and an employee of Production Service, Inc., at the time of his injury on September 8, 1956. He was paid workmen’s compensation benefits for his injury by his employer’s insurance carrier, Maryland Casualty Company, under the Mississippi Workmen’s Compensation Act, until sometime during the year 1957, when such payments were discontinued. On October 31, 1958, he went to the law office of the appellant, Arlington Jones, a member of the Bar of the City of Hattiesburg, for legal advice. Williams asked Jones whether he was not entitled to more compensation. Jones told Williams that he would have to look into the matter, and at that time Williams signed a paper entitled “Contract for Legal Services”, in which he assigned to Jones, as attorney, “an undivided one-
The record that we have before us shows that Judge Collins and his associate filed two suits on behalf of Williams, as plaintiff, against Index Drilling Company, as defendant, for the recovery of damages for the injuries suffered by the plaintiff on September 8, 1956, as a result of the negligence of the defendant’s truck driver in the operation of the defendant’s truck and crane.
The first suit was filed on August 20, 1959. The cause was docketed in the Circuit Court as Cause No. 7139. The defendant Index filed its answer to the plaintiff’s declaration on October 22, 1959. On November 3, 1959, the appellant Jones filed in the cause an instrument entitled “An Intervening Petition”, which recited that it was filed “for the purpose of giving all parties notice * * * of the assigned instrument which W. Arlington Jones has in connection with the above claim.” In his petition Jones stated that Williams had executed an assignment to him of a present and vested interest in his claim for personal injuries against any and all parties to the extent and to the amount shown by the copy of said assignment which was attached to the petition and made a part thereof; that the assignment was executed by Williams after he had reached the age of 21 years; and that Jones was entitled to be paid out of the proceeds from any recovery or settle
On November 3, 1959, the appellant Jones also filed in the name of Williams, as plaintiff, against the defendant Index a declaration in Cause No. 7166 alleging the same cause of action as that stated in Cause. No. 7139. On November 16, 1959, the attorneys for Index filed a motion to consolidate the two cases, for the reason that the parties litigant in both cases were the same, and the alleged cause of action in both cases was the same, and a judgment in one would be res judicata of the other. On November 19, 1959, the plaintiff Williams filed a motion signed and sworn to by himself to nonsuit or dismiss the suit filed for him by Attorney Jones and docketed as Cause No. 7166.
In his motion to dismiss without prejudice the suit filed by Jones, as attorney, in Cause No. 7166, the plaintiff alleged that on October 31, 1958, he employed Mr. Jones to represent him in his claim for workmen’s compensation against Production Service, Incorporated, or Martin’s Connection Work and Welding Shop, and that claim only; that plaintiff was injured while working for Production Service, Incorporated, on September 8, 1956, and for several months thereafter Martin’s Connection Work and Welding Shop and the Maryland Casualty Company paid workmen’s compensation to him in the approximate amount of $2,000; that sometime during the year 1957 Martin’s Connection Work and Welding-Shop and Maryland Casualty Company, its insurance carrier, ceased and refused to pay to the plaintiff any further workmen’s compensation, and on October 31, 1958, plaintiff employed Mr. Jones to represent him in his claim for further compensation. The plaintiff further alleged that after three or four months had passed and he had heard nothing further from Mr. Jones, he went to Mr. Jones’ office and inquired as to what action he had taken in the case, and he was then and there in
The plaintiff further stated in his motion that, after being thus informed by Mr. Jones, he sought the advice of P. B. Collins, of Laurel, Mississippi; that he informed Mr. Collins of the facts in the case, and further informed Mr. Collins that he had not employed Mr. Jones to represent him in any other claim except the claim for workmen’s compensation; that Mr. Collins upon being so informed agreed to represent him in his claim against Index Drilling Company, Incorporated, in a third party action, and he thereupon signed a contract with Mr. Collins to represent him in such third party action. The plaintiff further stated in his motion that, notwithstanding the fact that he had been informed by Mr. Jones that he had no claim against any one else, and notwithstanding the fact that Mr. Jones had taken no action on his claim for workmen’s compensation up to August 20, 1959, three days after process was served upon Index Drilling
On the basis of the facts stated above, the plaintiff stated that Mr. Jones had no right or authority to file the suit in Cause No. 7166 and had no interest therein, and the plaintiff moved that the court nonsuit or dismiss the suit without prejudice.
On January 11, 1960, the attorneys for the defendant Index filed a motion for leave to amend its answer in Cause No. 7139, and an order was entered sustaining the motion. On January 14, 1960, the plaintiff filed an answer to the affirmative defenses set up in the defendant’s amended answer. On January 15, 1960, an order was entered in Cause No. 7139 sustaining the motion of the plaintiff for permission to take a nonsuit in said cause without prejudice.
On March 21, 1960, an order was entered sustaining the motion of the plaintiff for a voluntary nonsuit in Cause No. 7166. The order recited that the court had heard the testimony of the defendant and had found that the motion for nonsuit was well taken and should be sustained.
A new declaration was filed by the plaintiff’s attorneys, F. B. Collins and Paul Gr. Swartzfager on April 25, 1960. The case was docketed as Cause No. 7226. The parties named in the declaration were the same as the parties named in the declaration filed in Cause No. 7139, and the negligence charged against the defendant Index was substantially the same as the negligence charged in Cause No. 7139. That case was tried at the January
On May 15, 1962, Jones filed a motion in Cause No. 7226 for permission to intervene as a party in interest in said cause, or in the alternative for an adjudication by the court before trial of the movant’s assigned interest in the plaintiff’s cause of action, on the ground that the plaintiff had executed to him an assignment of an undivided 25 percent interest in his claim for damages as a result of personal injuries received by him and described in the plaintiff’s declaration. In his motion Jones alleged that, by virtue of Mississippi Code Annotated section 1448 (1956), he was entitled as a matter of right to intervene and to be protected in his interest by any judgment entered in the cause. Attached to the motion as an exhibit thereto was a copy of the contract for legal services to be rendered by Jones dated October 31, 1958, and signed by the plaintiff Williams.
It appears from the record that the case was set for hearing on Jones’ motion to intervene, or in the alternative for an adjudication by the court of his assigned interest in the plaintiff’s cause of action, on September 6, 1962, being a day of the regular August 1962 term of the court, and on that day testimony was taken on the motion.
Upon being called to testify as a witness in his own behalf Jones identified the written “Contract for Legal Services” dated October 31, 1958, and signed by the plaintiff Williams. The contract was introduced in evi
“CONTRACT FOR LEGAL SERVICES
“For and in consideration of legal services rendered in mybehalf in the prosecution of my claim against Index Drilling Co., Dapsco Inc., Martin Connection Works & Maryland Casualty Co. or any other person, firm or corporation I hereby assign and set over to W. Arlington Jones, Attorney, an undivided one-fourth interest in said claim and also in and to all sum, or sums, received therefrom, (one-third if case is appealed).
“I hereby authorize the above attorney, W. Arlington Jones, to prosecute this claim in my name, and I hereby ratify his actions in all things pertaining thereto.
“Witness my signature on this the 31st day of Oct., 1958.
/s/ Charles O. Williams Rt. 1 Soso”
Jones testified that after the signing of the above mentioned contract he represented Williams in his claim for compensation for injuries received by him as a result of the accident referred to in the plaintiff’s declaration. Jones was then asked whether he was presently employed by Williams. His answer was “No.” He then identified and introduced in evidence a letter which he had received from Williams, postmarked October 17, 1959. The letter signed by Williams appears in the record, and is as follows:
“Dear Mr. Jones:
This is to advise you that now that the Workmen’s Compensation case against Martin Connection Works*589 and Welding Shop that you handled for me has now been settled and you have been paid your fee in full and have been paid for your services in full, and I will not be in need of any further services from you. I am writing this letter to you in order that you will know that our relationship as attorney and client terminated as of the date of the settlement of the suit as mentioned above, and that I no longer retain you as my attorney in any wise.
Yours truly,
Charles Williams”
Jones stated that he did not claim to represent Williams at the time of the hearing, that he had been discharged and he understood that Williams had employed Judge Burkitt Collins to represent him. Jones stated that he had given notice to Index Drilling Company of the assignment which he held of a 25 percent interest in Williams’ claim, that he had also given notice to the other corporations mentioned and the Maryland Casualty Company of his interest in the claim. Jones stated that he had filed a suit for Williams against Index in Cause No. 7166, in which Williams had taken a nonsuit without prejudice. A copy of the final judgment in that case, dated March 21, 1960, dismissing the cause without prejudice, was introduced in evidence.
The plaintiff’s attorneys did not cross-examine Jones, but introduced as evidence the motion for dismissal or nonsuit filed by the plaintiff in Cause No. 7166, upon which the above mentioned judgment was based, and with that the plaintiff rested.
At the conclusion of the hearing the trial judge denied Jones’ motion for leave to intervene, or in the alternative for an adjudication of Jones’ interest in the plaintiff’s cause of action against Index. The trial judge stated his reasons therefor as follows:
It appears from the record that several days after' the hearing of September 6, 1962, the court reporter found from an examination of his notes of the previous proceedings that, at the time the court ruled on the motion for nonsuit in Cause No. 7166, the court excepted from its ruling any determination as to the rights of Jones under the contract which constituted the basis of his claim to an interest in the plaintiff’s cause of action against Index Drilling Company. It further appears from the record that the trial judge, having satisfied himself that Jones’ rights under his contract for legal sei’vices had not been determined in the judgment of nonsuit entered in Cause No. 7166, immediately contacted by telephone the attorneys of the respective parties and advised them that the court in rendering its opinion on September 6 had erroneously assumed that
On September 13 the court entered an order upon its minutes setting aside its findings of September 6 on Jones’ motion for leave to intervene. The order stated that a rehearing on the motion would be held at nine o’clock A.M. Saturday, September 15, 1962. The order also stated that the opinion rendered on September 6 was based on an erroneous assumption that the court had theretofore, by its decision on plaintiff’s motion to nonsuit in Cause No. 7166, determined the question of attorney’s fees and the interest of Jones in the case, and that the order of nonsuit in that case was res judicata on the issue as to Jones’ right to intervene in Cause No. 7226; and for that reason no judgment had been entered pursuant to the court’s findings of that date. On September 13 the plaintiff Williams filed a motion to set aside the order entered on September 6 on the motion of Jones for leave to intervene, and also filed a plea in abatement and motion to strike the motion of Jones for leave to intervene in the cause.
When the case was called for a rehearing on Jones’ motion to intervene on Saturday, September 15, 1962, as provided in the order of the court entered on Sep
The court, in answer to the statement made by Jones’ attorney, dictated into the record a statement of the notice which he had given to the attorneys for the respective parties of his determination to set aside the decision rendered on September 6, and his effort to set the case for rehearing at a time during the present term which would be satisfactory to all of the parties. The court stated that since Mr. Jones did not consent to any rehearing in any event the court had no alternative but to proceed with the hearing, and the objection of the appellant’s attorney to the rehearing was overruled. The appellant’s attorney then requested that he be excused and retired from the courtroom. The court then proceeded with the hearing.
The plaintiff’s attorney had the clerk identify and introduced in evidence the files in causes numbered 7139 and 7166, and also the docket entries in Cause No. 7139. The plaintiff Williams was then called to testify as a witness in his own behalf.
Williams stated that he then went to see Judge Burkitt Collins; that he told Mr. Collins that he had given a contract to Mr. Jones for his workmen’s compensation, and Mr. Collins would not advise him as to that; that Collins told him that he would not interfere with another lawyer’s contract, but if he had not given his Index Drilling case to anyone he would take that. Williams stated that a few days after he had turned the matter over to Judge Collins he received word from Mr. Jones that he could settle his workmen’s compensation claim for about $2000. That was after Judge Collins had filed suit against Index Drilling Company.
At the conclusion of the hearing the court found that Jones had a contract with the plaintiff Williams to represent him in a workmen’s compensation case, but the contract covered only the matter of workmen’s compensation and had no relation to a third party suit; that Jones had no contract with Williams to represent him in a third party suit against Index Drilling Company for damages arising out of the injury for which he had received workmen’s compensation. It was therefore ordered that Jones’ motion for leave to intervene as a party plaintiff in the pending suit be denied. A final judgment was then entered pursuant to an agreement for a settlement of the case which had been arrived at by the attorneys for the respective parties, whereby it was ordered and adjudged that the plaintiff Williams have and recover of and from the defendant Index
Payment of the agreed sum of $27,500 was duly made into the registry of the court. On September 24, 1962, appellant Jones filed notice of appeal and a bond for appeal without supersedeas.
The appellant’s attorney has assigned and argued four points as ground for reversal of the judgment of the lower court. It is first argued that the court erred in entering an order on its own motion setting for a new hearing the motion of the appellant for leave to intervene as a party plaintiff in the suit, or in the alternative to adjudicate the assigned interest of appellant in the plaintiff’s cause of action against Index Drilling Company. But we think there is no merit in that contention. It is well settled that a court of general jurisdiction has the inherent right at any time during the term and on its own motion to open, set aside, vacate, or otherwise modify its own orders or judgments. 66 C.J.S., New Trial section 115 (1950); Mutual Health & Benefit Ass’n. v. Cranford, 173 Miss. 152, 156 So. 876 (1934); Shirley v. Conway, 44 Miss. 434 (1870) ; McRaven v. McGuire, 9 Smedes & M. 34 (Miss. 1847).
In the case of Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797 (1882), we find this apt statement: “It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.”
It is next argued that the court erred in permitting the plaintiff Williams to testify on the rehearing as to the facts and circumstances surrounding the execution of the contract for legal services and the changes made in the written instrument after it was signed by Williams. But we think there was no error in the courts admitting the testimony of Williams relating to the interview he had with Jones which led to the signing of the instrument and the fact that the blank spaces had not been filled in when the instrument was signed.
In 4 Am. Jur. 2d, Alteration of Instruments section 86 (1962), it is said: “There would seem to be no question as to the admissibility of parole evidence to show an unauthorized alteration of a written instrument, the object of such evidence being not to vary the terms of the instrument, but on the contrary to prove the terms thereof as originally executed.”
Williams’ testimony that the two and one-half lines of blank spaces in the typewritten instrument had not been filled in when he signed the instrument, that the words “one-half” were stricken out and the words “one-fourth” inserted in place of the words “one-half” before he signed the instrument, and that Jones said that the paper which he was requested to sign was needed to
It is next argued on behalf of the appellant that the court erred in not sustaining the motion of the appellant filed on May 15, 1962, for leave to intervene as a party plaintiff in the suit against Index Drilling Company, or in the alternative for an adjudication of the appellant’s assigned interest in the suit.
But we think it cannot be said that the trial judge erred in his finding that the appellant’s contract with Williams was a contract to represent him in his claim for workmen’s compensation benefits only, and that the appellant had no contract with Williams to represent him in the third party suit against Index Drilling Company. In our opinion there is ample evidence in the record to support the trial judge’s findings on that issue, and it is well settled by the decisions of this Court that the findings and conclusions of the trial judge on issues of fact will not be disturbed by this Court on appeal unless they are manifestly wrong. Hall v. State, 247 Miss. 896, 157 So. 2d 781 (1963); United States Fidelity & Guaranty Co. v. State, for use of Ward, 211 Miss. 864, 53 So. 2d 11 (1951); Kimbrough v. Smith, 201 Miss. 202, 28 So. 2d 850 (1946); Ellis v. Pellegrini, Inc., 163 Miss. 385, 141 So. 273 (1932).
For the reasons stated above the judgments appealed from are hereby affirmed.
After the filing of the record in this Court the appellee Index Drilling Company filed a plea in bar of the appeal, in which it was alleged that the appellant was estopped to assert or prosecute his claim against the appellee for reasons stated in the plea in bar.
Since the appeal has been considered by us on its merits, the plea in bar has become moot and is hereby dismissed.
Affirmed.