Opinion
No. 32934.
December 13, 1937.
1. EQUITY.
All matters which spring out of same transactions or radiate from same source may be tried together in equity, and justice may be administered in whole in one suit, rather than in piecemeal.
2. JUDGMENT.
A decree determining the merits of a cross bill against a defendant and favorably to a complainant which was a bank of another state was res judicata of such defendant's suit against bank commissioner of such other state under original and supplemental bills alleging facts set up in such cross bill, where court, at time of first suit, had same power sought to be invoked in second suit (Code 1930, sections 173, 174).
3. COURTS.
A decision of the Supreme Court became the law of the state and a judicial precedent to be followed until overruled, notwithstanding that it was rendered by an equally divided court.
APPEAL from the chancery court of Forrest county. HON. F.M. MORRIS, Special Chancellor.
Stevens Foote, of Hattiesburg, for appellant.
The only question involved in this appeal is whether the matters and things complained of in the instant case have been heretofore determined and settled in the suit of the appellant against the appellee and his wife and are, therefore, res adjudicata.
It is the contention of the appellant that all of the matters and things complained of in the bill of complaint of the appellee in the instant case have been conclusively determined and settled in the case filed by the appellant against the appellee and his wife on November 5, 1930, in the Chancery Court of Forrest County, which said suit appears on the docket of this court numbered 30,093. The appeal record in the latter case is the principal part of the complaint in the instant case, there being little of independent statement of fact in the bill taken separately and apart from the exhibit of the appeal record in said former case.
We respectfully submit that inasmuch as it has already been determined by the Chancery Court of Forrest County and also by this court that this appellant committed no wrong against the appellee when it cancelled the deed of trust, and since the subject matter involved in this case is the same as the subject matter involved in the first case, and also since there is an identity of parties in this case and the first case, the matter complained of in this case is res adjudicata and cannot, therefore, be litigated again.
Adler v. Interstate Trust Banking Co., 166 Miss. 215, 145 So. 107.
The rule that when the same subject matter has been litigated and judicially determined in a case between the same parties or their privies that subject matter cannot subsequently in another suit be the subject of controversy between the same parties, is too well settled by this court and other courts to require the citation of authority, but we cite some of the leading cases from this court.
Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Harvison v. Turner, 116 Miss. 550, 77 So. 528.
T.J. Wills, of Hattiesburg, for appellee.
The former decision in this case is not res adjudicata unless the subject matter and theory of the case presented in this action in tort was presented and decided or ought to have been presented and decided in the first suit. The damage claimed here is for a tort committed and is unliquidated.
Griffith's Chancery Practice, par. 518.
Unliquidated damages cannot be the subject of a set-off.
Myers v. Estell, 47 Miss. 17; Burrus v. Gordon, 57 Miss. 93; Whittaker v. Robinson, 16 Miss. 349; Gridley v. Tucker, Freeman's Chancery 209; Adams Co. v. Thomas, 87 Miss. 391, 39 So. 810; Cobb v. Wilson, 60 Miss. 343; Griffith's Chancery Practice, page 561, par. 521.
In order for the former suit to be res adjudicata to the present one they must have both been contractual in their nature. This suit is for tortious unliquidated damages and could not be set-off against the contractual obligation sued on in the original suit.
Gridley v. Tucker, Freeman's Chancery 209; Whittaker v. Robinson, 16 Miss. 349; Myers v. Estell, 47 Miss. 17; Casper v. Thigpen, 48 Miss. 635; Raymond v. State, 54 Miss. 562; Adams Co. v. Thomas, 87 Miss. 391; McCune v. Commercial Publishing Co., 148 Miss. 164, 114 So. 268; Calhoun v. McNair, 175 Miss. 44, 166 So. 330; 24 R.C.L., page 851, par. 55; 57 C.J., page 396, par. 49.
We submit that the first suit was on a contract, notes, negotiable in their character, and a promise to pay a stipulated amount. The defendant in that suit had paid and he resorted to every defense given him under the law, and some that the law did not permit, in an effort to avoid having to pay the second time. His action was actuated by the fact that his money then, at the time that he was fighting, was in the hands of, had been appropriated by, and was a part of the assets of the complainant in that suit seeking to compel him to pay the second time. His plea of set-off of unliquidated damages, growing out of a tort, was denied him. Under the law he was not entitled to it. This court held that appellant here in the former suit stood in the shoes of McIlween and since McIlween could have recovered, appellant could recover and was not estopped from so doing.
Appellee now comes into the court and says that appellant has committed a tort against him and as a result of that tort great damage has flowed to him; that he was defeated in his effort to successfully defend the suit brought against him by appellant and that this theory of his legal rights, as presented by his cross-bill, was wrong. He now asks the court to award him damages for the tort committed against him in full compensation of the damage sustained by reason of the wrong.
34 C.J., page 806, par. 1227 (3).
If plaintiff has misconceived his remedy and the suit is dismissed or judgment is rendered against him on that ground, it is not an adjudication of the merits, and will not bar a second action rightly brought; nor is it a bar where the new action, although based on the same facts, proceeds upon a different theory as to their legal consequences or the relative rights of the parties.
34 C.J., 815; Agney v. McElroy, 18 Miss. 552; Johnson v. White, 21 Miss. 584; Conn v. Bernheimer, 67 Miss. 498, 7 So. 345.
Argued orally by H.S. Stevens, for appellant, and by T.J. Wills, for appellee.
This cause, in all substantial particulars, was before this court on a cross-bill in the case of Adler et ux. v. Banking Co., 166 Miss. 215, 146 So. 107, 87 A.L.R. 347. Adler, the appellant there, set up in his answer substantially the same subject matter set up in the original bill in the case at bar.
The appellant in this case filed a plea setting up the entire record and proceedings in the former suit and alleging that it constituted res judicata of all matters involved in the present suit. This plea of res judicata, on the hearing, was adjudged to be insufficient.
The present suit was filed after the decision of the former appeal, and is sought to be justified on the theory that the present suit is grounded in tort, and it was not competent to present a defense grounded in tort on the former suit which was founded on contract.
The chancellor, in the former suit, held that the Mortgage Securities Company and the Interstate Trust Banking Company were agents of Adler, and that the cancellation involved was procured at Adler's instance and request, and that the Interstate Trust Banking Company did no wrong to Adler, and this decision of the chancellor was affirmed by an equally divided court.
In our opinion the facts alleged in the bill here and in the former suit are the same, and sprang out of the same transactions; and we think that all matters which spring out of the same transactions, or radiate from the same source, may be tried together in a court of equity, and that justice may be administered in whole, in one suit, rather than in piecemeal.
In Griffith's Chancery Practice, section 375, it is said that: "There are three related principles that find constant expression and application in equity procedure; That a multiplicity of suits shall be avoided and prevented whenever practicably possible; that equity will administer justice completely and not in parts, and that the interest of the public is promoted by putting controversy to rest. The practical application of these principles has already been seen in the chapter on parties wherein it is shown that all parties who are interested in the subject matter of the suit ought to be made parties thereto, to the end that the decree, when made, should be one which comprehensively determines all features of the cause, and that no substantial issue in the case should be left open for future consideration." In section 381 of the same work, it is said that, in discussing what is meant by the requirement that the cross-bill shall be germane to the original bill: "It has already been stated that the subject matter of the cross-bill must be germane to the original bill; and it is with respect to this requirement that the chief difficulties in connection with cross-bills are encountered. There is a distinct tendency, however, in the modern decisions, in the direction of a relaxation of the strict and technical rule, so as to permit the settlement in one suit of all demands which distinctly grow out of any one entire transaction, or out of a series of actually connected transactions, and which are vitally related — and especially so when injustice, circuity of action or delay will be thereby prevented. . . . If the matter introduced by the cross-bill be such that to the end of a just and complete determination of the whole matter as between all the parties to the suit, it will promote the convenient administration of justice and avoid delay and circuity of action, and it be not incongruous, foreign and disconnected as relates to the controversy involved in the original bill, then it is fit to be so introduced and heard, the discretion of the court in respect to it being similar to that which is exercised upon objections to original bills on the ground of multifariousness." In a footnote to page 560 of this same work it is said that, after citing Waters v. Bossel, 2 Miss. Dec. 414: "This matter of set-off must not be confused, as it so often is, with recoupment, for equity, in its procedure, is not concerned with recoupment as that matter is known and practiced in the law courts. Recoupment in law is distinguished from set-off in these particulars; First, it arises out of matter connected with the transaction or contract on which the plaintiff's cause of action is founded; Second, it matters not whether it be liquidated or unliquidated; Third, it is not dependent on any statute, but is controlled by the principles of the common law; and Fourth, it is limited to a defense and cannot be used for a judgment over, citing authorities. But equity is not concerned with this, because in equity if the counter-demand, or counter-claim arise out of, and is germane to, the transaction or contract on which the original suit is founded, it may be made the subject of a cross-bill wholly without any reference to the rules or limitations that apply either to set-off or to recoupment in law. This was the real situation in the case Sterling Products Co. v. Watkins-Gray Lumber Co., 131 Miss. 145, 95 So. 313, and the opinion there merely followed irrelevant arguments on the subject of set-off and recoupment when, strictly speaking, these subjects were not involved in the case. See ante Cross-Bill, section 381, note 19. An equity case wherein the same confusion existed is Fowler v. Payne, 52 Miss. 210, attention to which is called in Sterling v. Watkins, on Suggestion of Error, 132 Miss. 704, 95 So. 646. Another of confusion as to terms is Simmons v. Ormond (Miss.), 22 So. 875."
We see no matter in the present original and supplemental bills that was not set up in the cross-bill in the former suit, consequently the plea of res judicata presented a complete defense in the case at bar. The chancery court then had the same power that is sought to be invoked in the present suit. See Code 1930, sections 173, 174.
On the trial of the former suit, three of the judges disagreed with the holding of the court, but, notwithstanding this, the decision there rendered has become the law of the state and a judicial precedent to be followed until overruled. Robertson, Rev. Agt., v. Mississippi Valley Co., 120 Miss. 159, 81 So. 799. Any opinion that the writer might have in a personal and private capacity cannot control a judicial opinion. It is important that there be stability in the law, and that decisions once rendered should be adhered to unless and until a majority of the court, on consideration, decide that the former opinion is not only wrong, but mischievous as well.
The judgment of the court below in overruling the plea of res judicata is reversed and the cause is remanded.
Reversed and remanded.