Wright v. Frank

61 Miss. 32 | Miss. | 1883

Campbell, C. J.,

delivered the opinion of the court.

The amended bill introduced a new and different case from that made by the original bill, and sought relief based on a transaction occurring after the original bill was filed. It was therefore not maintainable, and the demurrers of Allen and Wright severally should have been sustained. It is not true that the parties affected by leave to amend were precluded from objecting to the amended bill because they did not except to the order granting leave to amend, or that they could not question the propriety of the amended bill by demurrer. After leave to amend, it was allowable to the defendants to the amended bill to demur to it.

The dismissal of the amended bill, which would have resulted from sustaining the demurrers to it, would have disposed of the cross-bill of Mrs. Brander as to Mr. Allen, who could not be made a party to her cross-bill when he was not a party to the suit, and the demurrer of Mr. Allen to her cross-bill should have been sustained, as it was not allowable for her to proceed against him in-this way, and because the effect of said cross-bill was to introduce a new subject of litigation not embraced in the original suit, as well as a new party who was not subject to be thus impleaded.

The demurrer of Wright to the cross-bill of Mrs. Brander should have been sustained, because said bill shows that the land on which it seeks to fasten a charge has been conveyed by Wright to Allen, who cannot be impleaded in this suit, and, except as a suit to charge the land, there is no matter of equity cognizance shown by said cross-bill, which is in the nature of an original bill as against Wright, and must to be maintainable, contain some matter of equity cognizance as to which she might bring and maintain an original bill. Gilmer v. Felhour, 45 Miss. 627. Stripped of the trust sought to be fastened on the Goff place, and which cannot be litigated in this case, because Allen is a necessary party to such litigation, and cannot be such in this case, the cross-bill presents nothing but a demand that Wright shall make good his promise to pay the debt to Frank, so as to free the land sold by him from his claim, and this is a purely legal demand not enforceable in a court of chancery.

The decrees overruling the four demurrers mentioned are reversed, the demurrers sustained, and both the amended and cross-bill are dismissed, and the cause remanded.

Decree accordingly.