Opinion
No. 43760.
January 17, 1966.
1. Dismissal and non-suit — compulsory non-suit not recognized in Mississippi.
2. Dismissal and non-suit — taxpayer's suit — dismissal without prejudice ex moro motu, improper.
Dismissal without prejudice of taxpayer's suit against city, on Court's own motion, was improper because in nature of compulsory non-suit.
Headnotes as revised by Robertson, J.
APPEAL from the Chancery Court of Lafayette County, WILLIAM H. ANDERSON, Chancellor.
Wells, Thomas Wells, Jackson; Armis E. Hawkins, Houston; Roberts Craig, Oxford, for appellant.
I. The lower court erred in dismissing complainant's original bill on the court's own motion. Campbell v. Fritzsche (S.D.), 105 N.W.2d 675; Hudson v. Strickland, 49 Miss. 591; Kunin v. Forman Realty Corp., 21 Ill. App.2d 221, 157 N.E.2d 785; United States of America v. W.T. Grant Co., 345 U.S. 629, 97 L.Ed. 1303, 73 S.Ct. 854; Western Auto Supply Co. v. Banner, 288 S.W.2d 402; Winston v. Miller, 12 Sm. M. (20 Miss.) 550; Secs. 1538, 1539, Code 1942; 17 Am. Jur., Dismissal, Discontinuance and Nonsuit, Secs. 58, 59; 27 C.J.S., Dismissal and Nonsuit, Secs. 46, 55.
II. The Court erred in dismissing this cause upon unsworn statements of counsel for the City of Oxford, unsupported by evidence, upon which statements the Court made a finding that the questions involved were moot, thereby giving the dismissal of appellant's suit the effect of adjudicating the whole matter res judicata. Brown v. Attala Drainage District No. 2, 185 Miss. 386, 187 So. 529; Commercial Credit Co. v. Newman, 189 Miss. 477, 198 So. 303; Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476; Pate v. Evans, 232 Miss. 6, 97 So.2d 737; Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820; Black's Law Dictionary, word "res judicata".
III. The Court erred in dismissing this cause upon unsworn statements of counsel for the City of Oxford, unsupported by evidence, thereby giving the dismissal of appellant's suit the effect of adjudicating that the City of Oxford had authority to operate the Mary Buie Museum and spend public monies therefor. Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221; City Council of Augusta v. Trustees of Richmond Academy, 77 Ga. 517, 1 S.E. 214; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; Dailey v. City of New Haven, 60 Conn. 314, 22 A. 945; Davenport v. Blackmur, 184 Miss. 836, 186 So. 321; Detroit Museum of Art v. Engel (Mich.), 153 N.W. 700; Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602, 111 S.E. 573; Edwards Hotel City R. Co. v. City of Jackson, 96 Miss. 547, 51 So. 802; Fitzgerald v. Town of Magnolia, 183 Miss. 334, 184 So. 59; Hitchcock v. City of St. Louis, 49 Mo. 484; J.S. Love Co. v. Town of Carthage, 218 Miss. 11, 65 So.2d 568; Steitenroth v. City of Jackson, 99 Miss. 354, 54 So. 955; Sec. 3374-112, Code 1942; McQuillin, Municipal Corporations, Sec. 367; 5 McQuillin, Municipal Corporations (2d ed.), Sec. 2323.
L.G. Fant, Jr., Holy Springs; J.W. Price, Freeland Grafford, Oxford, for appellees.
I. The facts in this cause reveal that the question raised by appellant is moot and, therefore, no appeal should lie. Campbell v. Fritzsche (S.D.), 105 N.W.2d 675; Erwin v. Mississippi State Highway Comm., 213 Miss. 885, 58 So.2d 52; Hammel v. Clarke, 76 Miss. 66, 23 So. 358; Insured Savings Loan Assn. v. State, ex rel Patterson, 242 Miss. 547, 135 So.2d 703; McDaniel v. Hurt, 88 Miss. 769, 92 Miss. 197, 41 So. 381; State, ex rel Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442; Yates v. Beasley, 133 Miss. 301, 97 So. 676.
II. The record in this cause would have justified the Chancellor in a finding that the appellant here was bound by a previous valid and subsisting decree of the Chancery Court of Lafayette County, Mississippi, and, therefore, justified a finding that appellant was not entitled to the relief sought below, the Chancellor should not be reversed for merely dismissing appellant's bill without prejudice. Brahan v. Meridian, 111 Miss. 30, 71 So. 170; Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557; Sec. 3374-112, Code 1942; 63 C.J.S., Municipal Corporations, Sec. 1057 p. 688; McQuillin, Municipal Corporations (2d ed.), Sec. 370 p. 1029.
III. A dismissal of a cause without prejudice is within the inherent powers of a Chancellor where the ends of justice are subserved. Winston v. Miller, 12 Sm. M. (20 Miss.) 550; 27 C.J.S., Dismissal and Nonsuit, Secs. 1, 3 pp. 320, 322; 30A C.J.S., Equity, Secs. 14, 569, 575; Griffith's Mississippi Chancery Practice, Sec. 622.
IV. Appellant by his action in this cause presumptively waived any objections he may have had to the action of the Chancellor in dismissing his bill without prejudice. State, ex rel Patterson v. Autry, 236 Miss. 316, 110 So.2d 377; Griffith's Mississippi Chancery Practice, Secs. 676, 677 pp. 746, 747.
This is an appeal by George T. Yancy from an order of the Chancery Court of Lafayette County wherein the court on its own motion dismissed without prejudice the bill of complaint filed by the appellant. This was a taxpayer's suit against the City of Oxford, Mississippi, wherein the appellant prayed for an injunction against the appellee enjoining the appellee from expending any tax funds or public funds from the city treasury for the purpose of maintaining and operating a museum, particularly the Mary Buie Museum.
The Court, on its own motion, entered an order of dismissal finding in the order, "That the questions involved in the matter are presently moot, due to the fact that the city now has on hand sufficient funds from the Mary Buie Estate to pay the expenses of the museum in the foreseeable future without the use of tax funds", . . .
(Hn 1) This dismissal is in the nature of a compulsory non-suit which is not recognized in Mississippi. The posture of this case at the time of dismissal was that the appellee had moved for a separate hearing on matters contained in its answer constituting special pleas in bar, which pleas were clearly distinct and readily separable and, of course, the appellee was entitled to a separate hearing on these matters. By the same token, the appellant would be entitled to present testimony answering the contentions of the appellee. (Hn 2) The Court holds that the judgment of the lower court dismissing without prejudice, the bill of complaint should be reversed, and the cause remanded for a hearing on the bill of complaint and the special pleas as set up in the answer, in accordance with the Statutes of the State of Mississippi.
The Court sympathizes with the chancellor and understands how the chancellor could very well feel that the order of dismissal was in effect being entered by agreement of the parties litigant.
The judgment is therefore reversed and the cause remanded.
Reversed and cause remanded.
Ethridge, C.J., and Rodgers, Brady and Smith, JJ., concur.