Opinion
No. 35375.
May 17, 1943.
1. CLERKS OF COURTS. Equity.
Where plaintiff brought bill seeking both to remove as cloud on her title to two town lots, a patent issued by state, and to procure a personal decree against chancery clerk and his bondsman for costs plaintiff must incur in removing cloud from her title allegedly caused by clerk's certifying to state that lots had not been redeemed from tax sale to the state, chancellor properly dismissed bill as to clerk and his bondsman, but dismissal should have been without prejudice.
2. APPEAL AND ERROR.
A review of correspondence failed to sustain plaintiff's contention that decree sustaining general demurrer and dismissing bill as to clerk of court and bondsman should be set aside because it was taken in absence of plaintiff's counsel, on ground that such absence was occasioned by failure of chancellor and chancery clerk to properly respond to letters by plaintiff's counsel asking for information as to state of pleadings in the suit and setting of cause for trial.
APPEAL from chancery court of Newton county, HON. A.B. AMIS, SR., Chancellor.
B.D. Wade, of Jackson, for appellant.
The appellant submits that the general demurrer and the special demurrer of the U.S.F. G. Company and Mason Walton should have been overruled.
C.E. Johnson, of Union, for appellees.
There was no proper move actually made in court by complainant or her attorney to secure delay in hearing of the demurrers; if they had been present the same result would have been reached; and the record reveals no legal reason or equitable reason or excuse for their absence on the first day of the term to then be heard on the demurrer.
The decision of the court on the general demurrer as to defendants Mason Walton and the U.S.F. G. Company was correct, and the entry of the judgment complained of was also correct and proper.
Bousquet v. Brown, 152 Miss. 171, 119 So. 166.
Argued orally by B.D. Wade, for appellant.
Appellant, in her bill in this cause, seeks (1) to remove as a cloud on her title to two lots in the Town of Newton, Mississippi, a patent thereto issued by the State of Mississippi to defendant, G.W. Burt, and (2) to procure a personal decree against appellee Walton, as chancery clerk, and his bondsman, for damages caused appellant by the wrongful act of said clerk in certifying to the state that the said two lots had not been redeemed from tax sales to the state, after appellant had redeemed said lots from the sales and Walton had issued to her a release thereof under Section 3263, Code of 1930, as amended by Chapter 175, page 473, Laws of 1932, and Chapter 197, page 452, Laws of 1934, and Section 3264, Code of 1930, amended by Chapter 286, Section 1, Laws 1932.
Defendants, by general demurrer, contended the bill stated no cause of action and, by special demurrer, that it was multifarious.
The chancellor overruled the special demurrers but sustained the general demurrer as to Walton and his surety and dismissed the bill from which Gordon appeals, and overruled it as to Burt, allowing him time to answer, as to which Burt makes no complaint here.
There were two tax sales to the state. Apparently the clerk overlooked the first sale when appellant offered to redeem the land, and the release refers only to the last sale, as was the case in Bousquet v. Brown, 152 Miss. 171, 119 So. 166. The theory of the bill is that this release, although it refers to the last sale only, effectually released all claim of the state under both sales, and that no title was conveyed to Burt by the patent, but that such patent is a cloud on the title of appellant, and that Walton and his bondsman are liable to appellant for the expense and costs she must incur in removing this cloud from her title. The bill also has a prayer for general relief, which might constitute sufficient basis for recovery, if liability exists, against Walton for the value of the land, if perchance his action in certifying it as state-owned land results in loss of title thereto by appellant. But the amount of the costs and expenses and who has title to the lots cannot be determined until termination of this case, and the issues between appellant and Walton and his surety, and those between appellant and Burt, cannot be tried and determined simultaneously and together in this suit. The chancellor was correct in dismissing the bill as to Walton and his bondsmen, but it should have been dismissed without prejudice to appellant to hereafter assert against them whatever rights she may have after termination of her litigation with Burt. That judgment will be entered here.
Appellant also urges that the decree below sustaining said demurrer should be set aside entirely because it was taken in the absence of her counsel, such absence being occasioned by the failure of the chancellor and the chancery clerk to properly respond to letters by her counsel asking for information as to the state of the pleadings in this suit, and the setting of the cause for trial. We have reviewed the correspondence and find no merit in this contention.
Affirmed in part and judgment here accordingly, and remanded.