Opinion
No. 27213.
December 10, 1928.
1. JUDGMENT. Proceedings by administratrix for authority to compromise damage claim held not trial of merits which may be pleaded in bar.
Proceedings in chancery court by administratrix seeking authority to compromise and settle damage claim held not to constitute a trial of the merits of the cause which may be pleaded in bar of subsequent suit on the same cause of action.
2. COMPROMISE AND SETTLEMENT. Replication to special pleas sufficiently alleged collusion and fraud in securing compromise and settlement.
Replications to special pleas alleging collusion and fraud in proceedings in chancery court by administratrix for authority to compromise and settle damage claim held sufficiently definite to require an answer, and, if established, to avoid decree authorizing settlement and release executed in consummation thereof.
3. EXECUTORS AND ADMINISTRATORS. Release executed by administratrix must be based on valid decree of chancery court authorizing compromise and settlement consummated by execution of release.
In order that release executed by administratrix be valid, it must be based on a valid decree of chancery court authorizing compromise and settlement afterwards consummated by execution of release.
4. JUDGMENT. Judicial proceedings may be attacked for fraud which may be established by parol evidence.
It is permissible to attack judicial proceedings for fraud, and establish such fraud by parol evidence.
APPEAL from circuit court of Tishomingo county; HON.C.P. LONG, Judge.
J.A. Cunningham, for appellants.
Chapter 167, Laws of 1908, as amended, provided that such cause of action may be brought by an administratrix for the benefit of all parties concerned. However, it also provides specifically, that "the determination of such suit shall not bar another action unless it be decided on its merits." According to the appellant's traverse of appellee's special plea of res judicata this collusive and fraudulent proceeding in the chancery court did not determine this suit on its merits. See Sutberry v. Meridian Fertilizer Factory, 64 So. 723; McRaney et al. v. New Orleans Northeastern R. Co., 90 So. 881; Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669.
The mere fact that administratrix had a right to bring suit does not answer the allegations of fraud.
Ely B. Mitchell, for appellee.
Where the administrator acts in good faith a compromise by him of a claim or a debt due the estate is valid and binding without previous authorization in vacation as provided for by Code of 1906, section 2065. Montgomery Sheriff et al. v. Mutual Life Ins. Co. of N.Y. 111 Miss. 6, 71 So. 162; Bailey v. Dilworth, 18 Miss. 404; Long v. Shackelford, 25 Miss. 559; Gullet v. Berry, 31 Miss. 346; Martin v. Traver, 43 Miss. 517; Anderson, Admr., v. Gregg et al., 44 Miss. 170.
As incidental to the power to sue and collect, the executor or administrator has the right to compromise any demand of decedent, provided he acts honestly and within the range of a reasonable discretion for the true interests of the estate. 23 C.J. 1198; 8 R.C.L., Sec. 70; Parker v. Providence Stanington Stream Boat Co. (17 R.C.L. 376), 33 Am. St. Rep. 869; Greenlee v. East Tennessee R. Co., 5 Lee (Tenn.), 418; Stephens v. Nashville, etc., R. Co., 10 Lee (Tenn.), 448; Sykora v. K. Thrashing Mach. Co., 59 Minn. 130; Foote, Admr., v. Great Northern R.R. Co., 81 Minn. 493; Fox v. Fairchild, 133 Miss. 617.
A decree rendered in a former suit is a bar to a subsequent suit between the same parties, and in the same right, and for the same subject-matter. Manley v. Kidd, 33 Miss. 141; Williams v. Luckett, 77 Miss. 394; Bates v. Strickland, 139 Miss. 637; Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331.
Could the plaintiff bring his suit in the circuit court without first having the decree of the chancery court set aside?
Where a compromise was authorized by the court relief be sought by a bill in equity. 23 C.J., Sec. 455, 1201; Henry Co. v. Taylor, 36 Ia. 259; McGoon v. Scales, 9 Wall, 23, 30; 19 L.Ed. 545.
Since the appellant admits that the administratrix had the right to compromise the claim, since his traverse to the plea of res adjudicata does not set out specific acts from which fraud can be inferred, since the plea of res adjudicata is legal and binding decree, and since this decree is standing, and has never been set aside, it necessarily follows that the court was correct in his opinion in this cause, and this case should be affirmed.
Argued orally by Ely B. Mitchell, for appellee.
The appellants, Oma Lea Keanum and Elbert Keanum, minors, suing by their guardian and next friend, Charley Lawson, instituted this suit in the circuit court of Tishomingo county against the Southern Railway Company, seeking to recover damages for the death of their father, Tilden H. Keanum, which was alleged to have been the result of injuries received by him on account of the negligent operation of appellee's freight train through the incorporated town of Burnsville, Miss.
To the declaration, the appellee filed special pleas which it denominated "pleas of res adjudicata," in which pleas it was alleged that the duly appointed and qualified administratrix of the estate of Tilden H. Keanum, deceased, had previously filed a petition in the chancery court of Tishomingo county, seeking authority to compromise and settle the claim for damages for the death of the said Tilden H. Keanum at and for the sum of one thousand dollars; that, upon proof offered in support of this petition, the chancery court granted a decree authorizing the said administratrix to compromise and settle said claim for the sum of one thousand dollars; and that, in pursuance of such authority, the said administratrix received from the appellee the sum of one thousand dollars in full compromise and settlement of all liability for the death of the said Tilden H. Keanum, and executed to appellee a full and complete release of all claims or demands based upon the injury and death of the said Keanum. As exhibits to these pleas, there were filed copies of the proceedings appointing the administratrix of the estate of decedent, copies of the proceedings in the chancery court seeking authority to settle the claim for the death of the decedent, including the decree authorizing such settlement, and also a copy of the voucher for one thousand dollars paid to the administratrix, and a copy of the release executed by said administratrix.
To these pleas in bar the appellants filed replications, alleging that the decree of the chancery court authorizing the settlement of the claim against the appellee was procured by collusion between the said administratrix and the claim agent, attorneys and officers of the appellee company; that the appointment of the said administratrix was collusive and fraudulent, and was not made to administer said estate and handle said cause of action in good faith on behalf of the heirs and beneficiaries, but, on the contrary, was made as a result of active collusion between said administratrix and representatives of the appellee, for the purpose of protecting the interest of appellee; that the said administratrix was represented and advised only by the attorney for the appellee; that the administratrix and agents of the appellee colluded and conspired together to conceal from the chancery court the real merits of the case, and the extent of the injury to, and sufferings of, the decedent; that, by collusion between the administratrix and agents of appellee, the facts were grossly misrepresented to the chancery court; and that the decree authorizing the settlement and the release executed in pursuance of such authority were procured by such collusion and fraud, and were therefore invalid, and constituted no defense to the cause of action.
The appellee filed a motion to strike these replications, which the court below appears to have treated as a demurrer, and this motion was sustained. The appellants declined to plead further, and a final judgment was entered for the defendant railroad company, and from this judgment this appeal was prosecuted.
Throughout this record and the briefs of counsel the special pleas filed in this cause are referred to as "pleas of res adjudicata," and the proceedings in the chancery court which resulted in a decree authorizing the compromise and settlement of the right of action are referred to as "a trial of the merits of the cause of action;" but these proceedings are in no proper sense a trial of the merits of the cause, which may be pleaded in bar of a subsequent suit on the same cause of action. In the case of Gunter v. Henderson Molpus Co. (Miss.), 115 So. 720, it was held that the chancery court may authorize and empower a guardian to compromise and settle a minor ward's claim or right of action for damages; but it is the consummation of said compromise and settlement and the release executed as evidence thereof that will bar a subsequent suit.
In the replications to the special pleas filed in the case at bar, the proceedings in the chancery court appointing the administratrix and the proceedings to secure the decree of the chancery court authorizing the compromise and settlement of the cause of action against the appellee are referred to and set forth somewhat in detail, while copies of the entire records in these proceedings, as well as the release executed in consummation of said compromise, are filed as exhibits to, and as a part of, said replications. These replications specifically charge collusion and fraud in the institution and prosecution of these proceedings in the chancery court, and in the consummation of the compromise and the execution of the release, and we are of the opinion that these allegations of collusion and fraud are sufficiently definite to require an answer, and, if established, to avoid the decree authorizing the settlement, and the release executed in consummation thereof.
In order for the release executed by the administratrix to be valid, it must be based upon a valid decree of the chancery court authorizing the compromise and settlement afterwards consummated by the execution of such release; and that it is permissible to attack judicial proceedings for fraud, and establish such fraud by parol evidence, is well settled in this state. McCraney v. New Orleans N.E.R. Co., 128 Miss. 248, 90 So. 881, and authorities there cited.
For the error of the court below in sustaining the motion to strike the replications to the special pleas, the judgment of the lower court will be reversed, and the cause remanded.
Reversed and remanded.