Opinion
No. 33375.
November 21, 1938. Suggestion of Error Overruled January 2, 1939.
1. EJECTMENT.
Statute stating the question involved in ejectment has no application in case where defendant's plea eliminates any controversy as to premises involved but statute applies only to case where plaintiff contends to the last for certain described premises and recovers a smaller amount (Code 1930, sec. 1466).
2. APPEAL AND ERROR.
A defendant in ejectment who was not harmed by alleged error could not complain thereof.
3. EJECTMENT.
Whether plaintiff in ejectment was entitled to recover was for jury.
4. COURTS.
On appeal to circuit court from county court in ejectment case, defendant could not for first time present a plea that plaintiff was a foreign corporation and had not complied with statute authorizing it to do business and giving it access to the courts, since circuit court sitting as a court of appeal can consider nothing except the record coming up from county court (Code 1930, sec. 704).
APPEAL from the circuit court of Washington county; HON. S.F. DAVIS, Judge.
B.B. Carmichael, of Greenville, for appellant.
As shown by declaration the plaintiff sued for the E. 55 feet of a given tract; defendant only defended as to a part of the whole. The Cahn Company could have directed that a judgment be entered for the part not defended for; this they did not do, but proceeded to judgment which described a part but highly erroneously included land not sued for. The judgment entered at first was signed by the county judge and by request of the defendant it is in the record. The defendant filed a motion to set aside the erroneous judgment and if this be not done that it be corrected so as to eliminate property within its calls not sued for by the plaintiff. The motion was overruled. The court, however, after the motion was overruled took the initiative and amended the judgment. The chances of bringing a defendant into future conflict was one of the several rights sought to be conserved by Section 1465, Code 1930, in part as follows: "The question at the trial shall be whether the plaintiff be entitled to recover, and whether the whole or part of the premises in question, and, if a part, then of which part; and if the jury find for the plaintiff as to part only, the verdict shall particularly specify which part; and, the judgment shall be entered on the verdict."
This statute is mandatory and the Cahn Company had no right to the instruction which told the jury that the burden was on the defendant in a case like this where they were required to establish a title good against all the world, and, far less be told that their verdict, if for the plaintiff, should be: "We the jury, find that the plaintiff is entitled to the land in controversy."
The statute directs, in cases like the one at bar, the jury to describe the land they expect and intend the plaintiff to have by his suit; and, expressly states that the judgment shall be entered on the verdict. The judgment, therefore, in order to conform with the instruction given, could not have been otherwise than meaningless, i.e., "The land in controversy." The county judge took a second stab at getting into the province of the jury and neither time entered a judgment based on the verdict of a jury and his acts are therefore void and the appellant is entitled to a reversal on this ground.
Even if mistaken as to the rights contended for previously, it seems that we cannot be mistaken in that when it is called to the attention of any of the courts that a given plaintiff is barred from bringing, or maintaining, a suit in the state courts, such plaintiff, under well settled principles, is placed on the same footing as one seeking to enforce some illegal gambling, or other claim denominated "contrary to public policy" cannot thereafter urge his claim or finally do the very thing the statutes recites that he cannot do, i.e., "maintain his suit."
We are taught that the law does not expect litigants to do vain things. Carmichael's evidence before the circuit court shows among other things, applied before the case was tried in the county court, to the respective secretaries of state of Mississippi and Louisiana for information as to the status of the plaintiff as a corporation and that he presented the facts at the earliest possible time, which was on appeal to the circuit court, and the appellee did not contradict one word he said, and we invite special attention to the testimony heard by the circuit court in support of a claim of diligence, and the certificate of the Mississippi Secretary of State showing that the appellee was not qualified to do business in this state.
It is assumed attorney for appellee will urge, as in the lower court, decisions of other courts which decided cases under statutes wholly different from Sections 4140 and 4164, Code of 1930, and, without burdening the record with citations of cases submit that the case of Marx Bensdorf, 173 So. 297, with cases therein referred to fully supports the views of the appellant that this case should be reversed and dismissed and the appellee barred from maintaining this suit.
Edward J. Bogen, of Greenville, for appellee.
It is true that the appellee filed suit for the recovery of the entire East 55 feet, which is composed of two store buildings and vacant land in the rear thereof, and that the appellant defended title only to a portion of the East 55 feet located in the rear of one of the store buildings. If appellee is entitled to a writ of possession for the part not defended for by appellant, certainly no harm is done appellant, and he cannot complain if there was any error on the failure of appellee to direct a judgment for the portion not defended for.
Buie v. Cloy, 127 Miss. 719, 90 So. 446; Bledsoe v. Doe, 4 How. 13.
Along the same line it may be said here that appellee showed title to all of the premises and that certainly he was entitled to recover a judgment for a certain portion thereof to which it showed title, even though it failed to move for possession of the remaining portion not defended for.
City of Natchez v. Vandervelde, 31 Miss. 706.
It is well recognized that in order to constitute adverse possession, that the possession must be actual, hostile and exclusive, and that it must be an entry under color of right. It is also well recognized by our court that the naked possession of land is presumed to be in subordination to the rightful title, and that the facts relied on for adverse possession must be so distinct as to acquaint the owner of the property.
Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Stevens Lbr. Co. v. Hughes, 38 So. 769; Jefferson Davis v. Bomar, 55 Miss. 671; Magee v. Magee, 37 Miss. 138; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; McMahon v. Yazoo Delta Lbr. Co., 92 Miss. 459, 43 So. 957; Alexander v. Polk, 39 Miss. 737; Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220; Rothchild v. Hatch, 54 Miss. 554; Dean v. Tucker, 58 Miss. 487.
Appellant suggests that it was error for the circuit court to refuse to reverse the county court and sustain the plea in bar filed for the first time in circuit court to the effect that appellee was not qualified to do business in Mississippi, and therefore was barred from bringing or maintaining this suit. This may have been a good defense if appellant had raised this question by proper pleading at the proper time in county court, but having failed to do so, appellant is precluded from raising this question after the rights of appellant and appellee had been adjudicated. In order to establish a prima facie case it was not necessary for appellee to prove that it was authorized to do business in Mississippi, and appellant cannot now raise this question for the first time on appeal.
9 Fletcher on Cyclopedia of the Law of Private Corporations, sec. 5998; 7 R.C.L., sec. 695; 14 A.C.J., sec. 4069; Leonard v. American Steel Co., 73 Kan. 79, 84 P. 553, 9 Ann. Cas. 491; Friedenwald Co. v. Warren, 195 Mass. 432, 81 N.E. 207.
In Fatherree v. Griffin, 153 Miss. 570, 121 So. 119, the court laid down the principle that it is a general rule of practice in all courts that as to amendable defects or omissions in the pleadings and proceedings, there is a waiver unless in some appropriate form objections be taken in time for the amendment to be made.
Appellee, a foreign corporation, brought ejectment in the County Court of Washington County against appellant for a lot in the City of Greenville, title to which was claimed by it. The trial resulted in a verdict and judgment for a part of the land sued for. From that judgment appellant appealed to the Circuit Court by authority of Section 704 of the Code of 1930. The Circuit Court, as a Court of Appeals, tried the cause on the record made in the County Court as provided in that section, and, finding no error, affirmed the judgment. From that judgment appellant prosecutes an appeal to this Court.
Appellee, in its declaration, described the property as "The East 55 feet of Lot 4 of Block 7 of the Third Addition to said City of Greenville." Appellant, in his plea to the declaration, claimed title to only 28 feet off the east side of the lot. Thereafter the trial was conducted and concluded on the basis that the land involved was that part described in appellant's plea. In other words, appellant disclaimed any title to any of the balance of it. The jury returned a verdict that appellee recover the land in controversy without describing it particularly. Upon that verdict the County Court entered a judgment for appellee in which the land is described as in appellant's plea.
Appellant contends that the judgment is erroneous because it was based upon a verdict which was in violation of Section 1466 of the Code of 1930 in that it failed to describe by metes and bounds the property for which the verdict was rendered. That section provides, among other things, that the question at the trial shall be whether the plaintiff is entitled to recover, and, if so, whether the whole or only a part of the premises involved, and, if a part, then which part, and if the jury shall find for the plaintiff as to part only, the verdict shall particularly specify which part, and judgment shall be entered on such verdict.
Appellant's plea eliminated any controversy as to the premises involved. Thereafter it became an action alone for that part described in the plea. Section 1466 has no application to such a case. It applies alone to a case where the plaintiff contends to the last for certain described premises and recovers a smaller amount. Furthermore, appellant was not harmed by what was done in this respect and therefore had no right to complain if error was committed. Buie v. Cloy, 127 Miss. 719, 90 So. 446; Latham v. Lindsay, 130 Ky. 669, 113 S.W. 878.
The evidence was ample to justify the jury in returning a verdict for appellee for the whole premises described in the declaration. Appellee had a perfect paper title to all of the property, acquired through conveyance in 1908; and the evidence strongly showed that such title had been followed by continuous possession and acts of ownership since. Appellant's claim of title was based alone on adverse possession and the evidence supporting it was not strong. The argument, therefore, that the verdict is contrary to the evidence is without foundation.
After the cause reached the Circuit Court on appeal from the County Court, appellant for the first time presented a plea supported by proof that appellee was a foreign corporation and had not complied with the statutes of this state authorizing it to do business therein and giving it access to its Courts. The Circuit Court disallowed the plea. That action of the Court is assigned and argued as error. There is no merit in this contention. Under Section 704, Code of 1930, an appeal from a County Court to a Circuit Court is on the record made in the former alone. If prejudicial error be found on such record, the Circuit Court orders a trial de novo, otherwise the judgment of the County Court is affirmed. The Circuit Court, sitting as a Court of Appeals, can consider nothing except the record coming up from the County Court. In that respect it occupies the same position that the Supreme Court does with reference to appeals to it from the inferior Courts. By his plea, appellant sought to add to the record a matter that was not presented and considered by the County Court.
We find no prejudicial error in the trial.
Affirmed.