Opinion
No. 36661.
January 26, 1948.
1. EQUITY
Adequacy of a bill to state an equitable cause of action is always open to examination by the court.
2. APPEAL AND ERROR.
Where complainants appealed from decree dismissing bill and there was no cross-appeal by defendant from overruling of demurrer but court's ruling thereon was pressed upon attention of the Supreme Court, remand of the case by Supreme Court for hearing upon the merits became part of the "law of the case."
3. APPEAL AND ERROR.
Supreme Court's opinion affirming trial court's action in overruling demurrer for misjoinder of parties defendant became "law of the case" for purpose of demurrer on the same ground in subsequent hearing.
APPEAL from the Chancery Court of Warren County.
Creekmore Creekmore, of Jackson, and Brunini, Brunini Everett, of Vicksburg, for appellants.
Appellant's motion for an inspection of the books of Dr. Johnston should have been sustained.
Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661.
The lower court should have denied appellee's motion to withdraw her answer and to refile her demurrer.
Payne v. McNeeley, 123 Miss. 248, 85 So. 197; Mitchell v. State, 179 Miss. 814, 176 So. 743; Townsend v. Beavers, 185 Miss. 312, 188 So. 1; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Taylor v. Bell, 194 Miss. 112, 11 So.2d 825; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557; Yazoo M.V.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167; Caston v. Caston, 54 Miss. 512; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350.
The demurrer should have been overruled.
Shepherd v. Johnston, supra; Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676; Taylor v. Webb, 54 Miss. 36; Simmons v. Ingram, 60 Miss. 886; Simpson v. McGlathery, 52 Miss. 723; Robertshaw v. Hanway, 52 Miss. 713; Tuteur v. Brown, 74 Miss. 774, 21 So. 748; Peeples v. Yates, 88 Miss. 289, 40 So. 996; Lewis v. Jefferson, 173 Miss. 657, 161 So. 669; Griffith's Mississippi Chancery Practice, Sec. 103.
James D. Thames and John H. Culkin, both of Vicksburg, and Lamar F. Easterling, of Jackson, for appellee.
The former judgment of this Court is not res judicata here.
Shepherd et ux. v. Johnston, 201 Miss. 99, 28 So.2d 661; Sperry's Estate v. Sperry, 189 Miss. 321, 196 So. 653; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386; Haines v. Haines, 98 Miss. 830, 54 So. 433; Pigford v. Ladner, 142 Miss. 435, 107 So. 658; Pattison v. Josselyn, 43 Miss. 373; Davis v. Roberts, Smedes M. Ch. 543; Hunter v. Carmichael's Adm'r 12 Smedes M. (20 Miss.) 726; Doe ex dem. Helm v. Natchez Ins. Co., 8 Smedes M. 197; Commercial Bank of Manchester v. Doe ex dem. Martin, 9 Smedes M. 613; Anderson v. Leland, 48 Miss. 253; Griswold v. Simmons, 50 Miss. 137; George Co. v. Louisville N.R. Co., 88 Miss. 306, 40 So. 486; Adams v. Clarksdale, 95 Miss. 88, 48 So. 242; Goodwin v. Mitchell (Miss.), 38 So. 657; Vicksburg Manufacturing Supply Co. v. J.H. Jaffray Construction Co., 94 Miss. 282, 49 So. 116; Ferguson v. Applenhite, 10 Smedes M. 301; Code of 1942, Sec. 1962.
There was a fatal non-joinder of parties and it is elementary and axiomatic that all questions involving the joinder or non-joinder of the parties to a suit must be settled at the very outset of the trial.
Clayton v. Merrett, 52 Miss. 353; Eustice v. Holmes, 52 Miss. 305; Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Lemmon v. Dunn, 61 Miss. 210; Bishop v. Miller, 48 Miss. 364; Foster v. Jones (Miss.), 17 So. 893; McIlvoy v. Alsop, 45 Miss. 365; Barry v. Barry, 64 Miss. 709, 3 So. 532; Harding v. Cobb, 47 Miss. 599; Harlow v. Mister, 64 Miss. 25, 8 So. 164; Clement v. Hawkins, 8 Smedes M. 339; Maynard v. Cocke (Miss.), 18 So. 374; Yates v. Council, 137 Miss. 381, 102 So. 176; Griffith's Mississippi Chancery Practice, Secs. 101, 104, 108.
There is no equity on the face of the bill. Appellants predicate their right to recover in this case upon the existence of a resulting trust. The allegations of facts contained in the bill are not sufficient to establish an enforceable resulting trust.
Miazza v. Yerger, 53 Miss. 135; Dogan v. Cooley, 184 Miss. 106, 185 So. 783; Code of 1942, Sec. 269.
The alleged claim of the appellants in this case is barred by the statute of limitations.
Hughes v. Letcher et al., 168 Ala. 314, 52 So. 914; Code of 1942, Sec. 709; 54 Am. Jur. 159, Sec. 204.
There is no merit in the contention that the lower court erred in overruling the motion for an inspection of the books of Dr. Johnston.
Argued orally by Rufus Creekmore, for appellants, and by Lamar F. Easterling, for appellee.
This is the second appearance of this cause here. When first presented ( 201 Miss. 99, 28 So.2d 661) the appeal was by the same appellants from a decree dismissing the bill. Demurrer was overruled and after answer, appellants filed a motion for the inspection of certain documents and records. The motion was denied, whereupon complainants were put to their proof. Testimony by complainants was excluded by the court on the ground that it constituted an attempt to establish against the estate of a decedent a claim arising in his lifetime. We reversed for the error of disallowing inspection, and held that the complainants were competent witnesses.
Upon remand, the learned chancellor, evidently overlooking the established law of the case, again denied the motion to inspect. We must reaffirm our former holding. Since defendant's original demurrer had been overruled, she here filed answer but upon trial filed a motion to withdraw same and file demurrer. This was sustained, the demurrer filed, and in turn sustained, and the bill dismissed. Hence this appeal.
Both the motion to inspect and motion to withdraw answer were met by counter motions to strike, the latter pleading being met by an answer which in turn was attacked by motion to strike the answer. The record thus cumbered into complexity suggests a failure to accept the pleadings as being already in the file before the court even after remand, and also the privilege of resisting motions without formal issue thereon by answer or counter motion. See Griffith, Miss. Chancery Practice, Sec. 407.
Both the motion of complainants and the demurrer of defendant were identical with those considered by us on the former appeal. While there was no cross-appeal therein by the defendant from the action of the court in overruling the demurrer, its ruling thereon was pressed upon our attention, and since the adequacy of a bill to state an equitable cause of action is always open to examination by the Court, our remand of the case for hearing upon the merits became part of the law of the case.
Justification for an apparent disregard of the controlling principles as established by this Court is sought in a new emphasis upon the ground, set out in the demurrer, that there is a misjoinder of parties defendant. Yet, as stated, the demurrers in the two hearings are identical. The parties alleged to be interested and necessary are the heirs of Dr. Johnston. This point was considered by us on the first appeal, and, as there pointed out, since appellee claims to be sole owner in fee simple, such omitted parties, if admitted, would make common cause with appellants, but for whose establishment of a resulting trust, they would take nothing. Their personal interest in the outcome does not constitute them necessary parties in a suit against Mrs. Johnston. Our former opinion affirming the trial court's ruling on this point made it likewise the law of the case.
We do not pass upon the assignment predicated upon the trial court's order sustaining the motion to withdraw answer and file demurrer. This was a procedural matter which culminated in a hearing upon the demurrer, and the appeal is taken therefrom and our attention of necessity focused thereon.
We conclude therefore that the learned chancellor erred in denying the motion to inspect, and we shall enter this order here sustaining the motion. We remand the cause for hearing on the merits of the bill upon the issue of a resulting trust, upon which issue complainants have been adjudged competent witnesses. We do not consider here the nature or competency of the proposed testimony, in which latter connection, our former holding that the suit is not one resting solely upon an oral contract with Dr. Johnston, may be found in point.
Reversed and remanded.