Opinion
No. 35280.
April 26, 1943.
1. INFANTS.
Where guardian, appointed by chancery court for express purpose of bringing suit, filed suit on behalf of complainant at same time as companion suit involving identical issues was filed, and on basis of powers of chancery court to adjudicate all rights of parties defeated defendant's suit in federal court for declaratory judgment, and waited until companion case had been adversely decided before moving to dismiss so as to prosecute an identical action brought in circuit court of another county as complainant's next friend, motion was properly overruled (Jud. Code, sec. 274d, 28 U.S.C.A., sec. 400).
2. DISMISSAL AND NONSUIT.
Right of a plaintiff to take a nonsuit is large but not unlimited and is in discretion of court.
3. DISMISSAL AND NONSUIT.
When cause has proceeded to such point, or when such steps have been taken, that defendant has secured some substantial right which would be destroyed by dismissal, it should not be permitted.
4. APPEAL AND ERROR.
Where guardian desired to stand upon motion to nonsuit chancery court case which was overruled, guardian should have declined to proceed with trial so that defendant would have been entitled to a dismissal with prejudice which would have been a "final judgment" appealable by guardian.
5. APPEAL AND ERROR.
Where guardian proceeded with trial after his motion to nonsuit chancery case was overruled as if no such motion had been made, he could not thereafter complain of order overruling motion.
6. APPEAL AND ERROR.
Where chancery case brought by minor's guardian and action in circuit court brought by guardian as minor's next friend were identical on their merits, and evidence was such that if chancery case had been dismissed on guardian's motion, circuit court would have had to direct a verdict for defendant unless one or more of complainant's witnesses materially changed testimony, complainant was not harmed by order overruling his motion for nonsuit and preventing prosecution of circuit court action.
7. INFANTS.
Chancery court is specially charged with duty of protecting rights of minors.
8. INFANTS.
Under rule that chancery court is specially charged with duty of protecting rights of minors, court properly refused to grant motion to dismiss suit brought by a guardian of a minor appointed by chancery court for express purpose of bringing particular suit so that an identical suit could be prosecuted by minor's next friend in circuit court.
APPEAL from chancery court of Sunflower county, HON. J.L. WILLIAMS, Judge.
J.O. Eastland, of Ruleville, J.J. Breland and R.L. Cannon, both of Sumner, and C.C. Pace, of Cleveland, for appellants.
A complainant in the chancery court has the right to dismiss his bill of complaint at any time he desires before the case is submitted to the court for a decision unless by the filing of the suit or in the proceedings a change has been wrought in the status and rights of the parties which would be destructive of the rights of the defendant; or unless thereby the defendant has obtained valuable rights by the filing of the suit or in the proceedings which he would be deprived of by the dismissal of the suit.
People's Bank in Liquidation et al. v. Pennington, 137 Miss. 653, 103 So. 144; Griffith's Miss. Chancery Practice, Secs. 534, 535.
All rights that defendants had acquired by the filing of this suit was the right to defend the cause in that court. They would have had the same right in the circuit court of the Second Judicial District of Tallahatchie County, Mississippi, or in any other court where the suit might have been filed thereafter; and we submit that complainant in the court below had an absolute right to dismiss his cause without prejudice.
The demurrer incorporated in complainant's answer to the cross-bill of defendants in the court below should have been sustained. The cross-bill asked for no relief whatever against complainant except a preliminary writ of injunction to restrain complainant from proceeding further in the circuit court of the Second Judicial District of Tallahatchie County, Mississippi. In other words, the only relief prayed for was injunctive relief and the second ground of demurrer in the answer that defendants had a plain, full, complete, and speedy remedy at law by plea in abatement in the circuit court of Tallatchie County, Mississippi.
The remedy to stay the prior action between the same parties and for the same cause of action in the same or in different courts in this state with concurrent jurisdiction is by plea in abatement.
U.S.F. G. Co. v. Dedeaux et al., 168 Miss. 794, 152 So. 274; Ricks v. Richardson, 70 Miss. 424, 11 So. 935; International Harvester Co. v. Still, 98 Miss. 127, 53 So. 394; 1 C.J.S. 50, Sec. 17; 1 C.J.S. 58, Sec. 33; 1 C.J.S. 97, Sec. 64.
It is the general rule that an injunction will not issue to stay the proceedings in another court between the same parties and on the same cause of action where there is a full, adequate and complete remedy at law.
Jackson County v. Neville, 123 Miss. 571, 86 So. 353; Neville v. Adams County, 123 Miss. 413, 86 So. 261; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; International Harvester Co. v. Still et al., supra; Sturges v. Jackson, 88 Miss. 508, 40 So. 547, 117 Am. St. Rep. 754, 6 L.R.A. (N.S.) 491; Planters' Compress Ass'n v. Hanes, 52 Miss. 469; Learned v. Holmes, 49 Miss. 290; Poindexter v. Henderson, 1 Miss. 176, 12 Am. Dec. 550; Griffith's Miss. Chancery Practice, Secs. 435, 436, 438; 32 C.J. 57, Secs. 37, 38; 32 C.J. 98, Sec. 96; 32 C.J. 101, Sec. 98.
Brewer Sisson, of Clarksdale, Neill, Clark Townsend, of Indianola, and Watkins Eager, of Jackson, for appellees.
Appellant was estopped to deny appellees' right to a trial of this cause in the chancery court of Sunflower County, Mississippi.
Howard v. Kelly, 111 Miss. 285, 71 So. 391; Penny Stores, Inc., v. Mitchell, 59 F.2d 789; Maryland Cas. Co. v. Pacific Coal Oil Co., 312 U.S. 270, 85 L.Ed. 826; 19 Am. Jur., Secs. 72, 82; 31 C.J.S. 372, 374.
The appellees were entitled to preserve and protect the jurisdiction of the chancery court of Sunflower County and the appellant was not entitled to dismiss its bill filed in that court.
Peoples Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386; Griffith's Miss. Chancery Practice, Sec. 534.
The chancery court of Sunflower County had exclusive jurisdiction over the cause of action and appellees were entitled to enjoin the parties from attempting to proceed in any other jurisdiction.
Martin v. O'Brien, 34 Miss. 21; Griffith's Miss. Chancery Practice, Secs. 436, 438; 14 Am. Jur., Sec. 243; 28 Am. Jur., Sec. 190; 21 C.J.S. 732, 745.
The chancery court had full jurisdiction over the guardianship and had a right to control the suit filed by the guardian and any attempt on the part of the minor to file other suits.
Re Heard's Guardianship, 174 Miss. 37, 163 So. 685; Newsom v. Federal Land Bank of New Orleans, 184 Miss. 318, 185 So. 595; Loock v. Pioneer Title Ins. Trs. Co. (Calif.), 50 P.2d 526; Lawson's Guardian v. Lawson's Admns. (Ky.), 247 S.W. 1112; Genimestad v. Rose Bros. Co. et al. (Minn.), 261 N.W. 194; Boyd v. St. Louis Brew. Ass'n. (Mo.), 5 S.W.2d 46; McVeigh v. McGurren, 117 F.2d 672; Liska v. Chicago Ry. Co. (Ill.), 149 N.E. 469; Ex parte Spurrier (Okla.), 238 P. 956; 31 C.J. 1124.
Argued orally by R.L. Cannon, for appellants, and by Ed. C. Brewer and Elizabeth Hulen, for appellees.
This case is identical in every respect with its companion case of Albert Parker v. Film Transit Company, 194 Miss. 542, 13 So.2d 159, in which the opinion goes down with this, except as to a part of the court procedure out of which a question arose which was not involved in the other case. We will now take that question up for consideration.
It is whether the chancery court erred in refusing to sustain the motion of complainant in this case to dismiss his bill and thereafter proceed on the same cause of action in the circuit court of Tallahatchie County. The question grew out of these facts: This action and that in the companion case were brought at the same time in the chancery court of Sunflower County. Before filing the bill in the present case the chancery court of Sunflower County appointed a guardian for the complainant for the purpose expressed in the order of authorizing this suit. Thereafter the Film Transit Company filed its petition in the District Court of the United States for the Northern District of this state against the complainants in both suits to have that court render a declaratory judgment fixing the principles governing those cases. This proceeding was under the Federal Statute, 28 U.S.C.A., sec. 400, and Maryland Casualty Co. v. Pacific Coal Co. et al., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826. The complainants resisted the federal court rendering a declaratory judgment on the ground of the pendency of the causes in the chancery court, which, under the law, had full jurisdiction to adjudicate and determine the rights of the parties. The federal court sustained that view and dismissed the cause from that court. Thereupon, the Parker case was tried, resulting in a decree for the Film Transit Company, Mitchell's guardian then brought another suit in the circuit court of Tallahatchie County for his ward against the Film Transit Company involving the identical cause of action. This suit was brought not as guardian for the ward but as next friend. After so doing the guardian moved the chancery court to dismiss the chancery court case. That motion was overruled and the cause went to trial and was tried and concluded in that court, resulting in a decree in favor of the Film Transit Company. Before the trial, however, the Film Transit Company had made its answer a cross-bill and sought to enjoin the prosecution of the circuit court case referred to. The final decree awarded the injunction.
We are of the opinion that appellant went too far before requesting the nonsuit and we reach that conclusion upon the following considerations: The evidence on the question of liability was identical in both cases. Counsel in their briefs so state. Appellant by virtue of the pendency of his cause in the chancery court defeated the declaratory judgment proceeding in the federal court. Then he waited to see how the companion case would result and when it ended in a final decree in favor of the Film Transit Company then for the first time he sought to abandon his chancery court case and prosecute the one in the circuit court. It is true that the right of a plaintiff or complainant to take a nonsuit is large, nevertheless it is not unlimited. It is in the discretion of the court. "When in any respect the cause has proceeded to that point, or when already such steps have been taken, that the defendant has thereby secured some substantial right which would be destroyed by the dismissal" it should not be permitted. Griffith's Chancery Practice, Sec. 534; State v. Hemingway, 69 Miss. 491, 10 So. 575; Chicago A.R. Co. v. Union Rolling Mill Co., 109 U.S. 702, 3 S.Ct. 594, 27 L.Ed. 1081; 19 Am. Jur., Sec. 72. When the guardian's motion to nonsuit the chancery court case was overruled, the trial proceeded as if no such motion had been made. The result was a judgment in favor of the Film Transit Company. In order to carry out his purpose the guardian should have declined to proceed with the trial and thereupon the defendant would have been entitled to a dismissal with prejudice, which would have been a final judgment appealable by the guardian. Furthermore, these two cases on their merits, as stated, are identical. That means, of course, if this case was dismissed from the chancery court and tried in the circuit court, unless one or more of the witnesses materially changed his testimony there would be a directed verdict for the defendant. In other words, under the case made, unless there is a radical change in it, the appellant was not harmed by denying him another trial. It might be well to have in mind that the chancery court is specially charged with the duty of protecting the rights of minors. Here we have a suit brought by a guardian of a minor appointed by the chancery court for the express purpose of bringing the particular suit that was brought in the chancery court. Taking all these matters into consideration we are of the opinion that the chancery court committed no harmful error in dismissing the bill.
On the question of liability, as stated, this case is identical with the Parker case, and the opinion in that case is therefore controlling.
Affirmed.
SPECIALLY CONCURRING OPINION.
I concur in the result reached in this case. I would prefer, however, to place emphasis upon the waiver of plaintiff, implicit in his proceeding to trial after his motion for nonsuit and dismissal was denied. His action in this respect was not compulsory, but the exercise of an option either to stand upon his motion, or to invoke the processes of the court in the trial of the cause upon its merits, in which trial he retained the right to procure a favorable judgment, as well as the right to stand upon same, if successful.
I do not think this principle requires citation to support it. However, a pertinent analogy is found in cases in which defendant has proceeded to trial in spite of his right to demand dismissal for failure of plaintiff to comply with prerequisite conditions imposed by law or by the court. Such illustrations may be found in cases involving noncompliance by plaintiff with a rule for costs, and with an accrued right of the defendant to have stale cases dismissed. Cf. McKey v. Torry, 28 Miss. 78.