Opinion
No. 35234.
January 25, 1943.
1. VENUE.
Proper venue of action for value of trees cut and removed from land and statutory penalty therefor was in county where land was situated (Code 1930, sec. 495).
2. COSTS.
County clerk could not require security for costs as prerequisite to filing and docketing record of case transferred from circuit court of another county, where plaintiff was not a nonresident nor shown to be insolvent (Code 1930, secs. 501, 502, 655).
3. DISMISSAL AND NONSUIT.
Action was not subject to dismissal for delay in docketing upon transfer by order of circuit court to court of another county, where delay resulted from county clerk's improper attempt to require plaintiff to give security for costs as prerequisite to docketing (Code 1930, secs. 501, 502, 655, 656).
4. ABATEMENT AND REVIVAL.
Action was not abated by pendency of subsequently instituted action between the same parties, regardless of whether actions were identical.
5. ABATEMENT AND REVIVAL.
Action which abates by reason of pendency of another action between same parties is the action commenced at later date.
APPEAL from the circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
J.J. Breland and R.L. Cannon, both of Sumner, and S.C. Mims, of Grenada, for appellant and cross-appellee.
The delivery to, and receipt by, the circuit clerk of Grenada County of the documents, papers, and record in the cause constituted a sufficient filing of the cause in the Grenada County circuit court.
Bituminous Casualty Corp. v. Clements (Fla.), 3 So.2d 865; Covington Bros. Motor Co. v. Robinson (Ala.), 194 So. 663; Home Ins. Co. v. Shriner (Ala.), 177 So. 897; Wheeling Pottery Co. v. Levi (La.), 19 So. 752; 49 C.J. 651.
When the record in this cause was delivered to the clerk of the circuit court of Grenada County it became the duty of said clerk to docket the cause in his court. Section 502, Code of 1930. The clerk could not shirk this duty by demanding a cost bond. Particularly is this true when, as shown by the record, the plaintiff was a financially responsible citizen and resident of Grenada County.
We submit that when the record of the suit was delivered to, and received by, the clerk of the circuit court of Grenada County such record was for all purposes filed in said court and the suit became and remained a suit pending in said court notwithstanding the misconception and delinquencies of the clerk.
Mississippi Code of 1930, Secs. 501, 502.
The plea is bad because it fails to show essential facts that the law requires to be shown by a plea in abatement based on the pendency of another action.
Proskey v. West, 8 Smedes M. (16 Miss.) 711; West Feliciana R. Co. v. Johnson et al., 5 How. (6 Miss.) 273; Babcock, Gardner Co. v. Scott Robinson, 1 How. (2 Miss.) 100; Grenada Bank v. Bourke, 110 Miss. 342, 70 So. 449; Carbolineum Wood Preserving Manufacturing Co. v. Meyer, 76 Miss. 586, 25 So. 297; 1 Chitty on Pleading, 3rd Am. Ed., p. 444.
The plea does not show that the action pleaded in abatement involves all the issues involved in the action in the instant case; and does not show that all the relief sought in the action in the instant case is obtainable in the action pleaded in abatement.
Carbolineum Wood Preserving Manufacturing Co. v. Meyer, supra; Cobb v. Cullen Bros., etc., Steel Co., 68 App. Div. 179, 74 N.Y.S. 56; 1 C.J. 61, Sec. 80; 1 C.J. 63, Note 26; 1 C.J. 72, Sec. 93, and Note 98; 49 C.J. 238, Sec. 279.
The plea is bad because (by the exhibit attached thereto as a part of the plea) it affirmatively shows that the action pleaded in abatement of the present action is an action of replevin, which action may be prosecuted concurrently with the action in the instant case — an action in trespass for the cutting and removing of the trees involved; and affirmatively shows that the said action in replevin does not involve all the issues in the present action, and that all the relief sought in the present action is not obtainable in the said action of replevin.
Wardman-Justice Motors, Inc., et al. v. Petrie, 39 F.2d 512, 69 A.L.R. 648, and note; 20 C.J. 10, Note 72 (3), (12), (31), (33); 20 C.J. 12, 13, Sec. 9; 1 C.J. 69, Sec. 89, and note 79 (b).
Stone Stone, of Coffeeville, for appellee and cross-appellant.
The appellee, the defendant in this cause, moved the court to dismiss the suit because the said suit was removed on a motion for a change of venue from the circuit court of the Second District of Tallahatchie County in March, 1941, and never having been put on the docket in Grenada County until July, 1942, fifteen months later, the case should have been dismissed for that reason alone, as the order for the removal of a case is not an order for life but is for the prompt removal of the cause and if a party plaintiff elects to sit idly by for fifteen months after the removal of a cause the same should be dismissed. The duty is to remove it within thirty days and when thirty days and fourteen months besides that has passed, that is sufficient for the dismissal of the action.
Mississippi Code of 1930, Sec. 766.
The plaintiff demurred to the motion or plea for dismissal of the suit because of the pendency of the other action in Tallahatchie County. We do not see how any distinction can be made in these cases. All were based on the same trespass, the same cutting, and the same identical timber with just a change as to punitive damages.
The law of Mississippi is that where two cases involve the same parties and the same issues, they cannot both stand.
In January, 1941, the appellant commenced an action in the circuit court of the Second Judicial District of Tallahatchie County against the appellee for the recovery of the value of trees cut and removed from her land in Grenada County, and for the statutory penalty therefor. The venue of this action under Section 495, Code of 1930, is in Grenada County. The appellee objected to the trial of the action in Tallahatchie County and on March 6, 1941, the circuit court thereof entered an order on its minutes transferring the case to the circuit court of Grenada County. The clerk of the Tallahatchie County court delivered the record in the case to the clerk of the circuit court of Grenada County pursuant to Section 501, Code of 1930, and received a receipt from him therefor on the 4th day of May, 1941. This record was not marked filed by the Grenada County clerk until July 13, 1942, at which time it was placed by him on the docket of the circuit court of that county. Thereafter the appellee, the defendant in the court below, filed a motion for the dismissal of the case on two grounds, first, delay in the filing and docketing of the case in the circuit court of Grenada County, and second, for the reason that "as shown by Exhibit `A' to this motion, there is another suit pending in the Honorable Circuit Court at Sumner, Mississippi, Second District of Tallahatchie County, involving the value of this same property sued for in this suit and the damages for the same property, and that to allow this would be to allow the plaintiff to be running in the Honorable Courts of Tallahatchie and Grenada Counties two suits for the identical property, and which is not allowable in the courts of our country." This second ground of the motion was treated by counsel and the court as a plea in abatement to which a demurrer was interposed by the appellant, plaintiff in the court below.
From evidence taken on the motion to dismiss it appears that the reason why the Grenada County clerk did not file and docket the case in the circuit court of that county until July, 1942, was that the appellant had not given security for costs and did not do so until just before the clerk filed and docketed the case. When the Grenada County clerk received the papers in the case it became his duty under Section 502, Code of 1930, to "enter the cause on his docket as if it had been commenced in the court of which he is clerk." He was without the right to require security for cost before discharging this duty and the case was pending in his court from the time he received the papers therein. The appellant is not a nonresident and is not shown to have been insolvent, consequently Section 655, Code of 1930, may be left out of view. The only right the Grenada County clerk here had was to proceed under Section 656 of the Code for obtaining security for costs after suit commenced. The motion to dismiss was therefore properly overruled, the appellant not being chargeable with the delay in the docketing of the cause. Moreover, it does not appear that this delay resulted in any damage to the appellee.
The demurrer to the plea in abatement was overruled and the appellant declining to plead further the action was dismissed. It appears from the exhibit to the plea in abatement that the action alleged to be pending in Grenada County is one in replevin for the recovery of logs alleged to have been cut on the plaintiff's land by the defendant and was begun on September 1, 1941, while the present action, as hereinbefore stated was begun in January, 1941. This fact is fatal to the plea in abatement for the action which abates by reason of the pendency of another between the same parties is the second action, not the prior one. Stauffer v. Garrison, 61 Miss. 67. This being true it will not be necessary for us to decide whether the two actions are identical.
The demurrer to the plea in abatement should have been sustained.
Reversed and remanded.