Opinion
No. 35595.
May 8, 1944. Suggestion of Error Overruled June 12, 1944.
1. DISCOVERY. Equity.
When a bill is sufficient as a bill of discovery, it is not competent to challenge it by a motion for a bill of particulars or by special demurrers on grounds that, as to matters about which discovery is sought and is due, the bill does not allege in that detail of averment required when complainant is in possession of the facts which will enable him so to allege.
2. DISCOVERY.
The purpose of a bill of discovery is to obtain the specific information.
3. APPEAL AND ERROR.
An interlocutory appeal will not lie from rulings on procedural or adjective matters.
4. APPEAL AND ERROR.
Questions presented by special demurrers to bill of discovery raised questions belonging to procedural or adjective side of law, and hence an interlocutory appeal would not lie from order overruling the demurrers.
5. APPEAL AND ERROR.
An attempted interlocutory appeal from a ruling on procedural or adjective matters cannot be saved on the assertion that such appeal will avoid expense and delay.
SMITH, C.J., and McGEHEE, J., dissenting.
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Jones Ray and W.L. Mhoon, all of Jackson, for appellant.
This is an appeal from the chancery court of the First Judicial District of Hinds County, Mississippi, where appellees sued appellant. Appellant interposed nine special demurrers to the original bill of complaint, all of which were overruled by the court, and from that decree appellant prayed for and obtained an interlocutory appeal, not only to settle the principles of the cause, but to save time and expense.
The special demurrers are as follows:
(1) The bill does not set out just what amount each of the complainants claim this defendant is due them.
(2) The bill does not aver the amount of premiums which complainants claim this defendant collected from policy holders in Arkansas and Mississippi.
(3) The original bill does not set out what assets the claimants claim this defendant disposed of, nor the amount received for each such asset.
(4) The bill does not allege what premiums, if any, the complainants paid to this defendant, as trustee for the Century Life Insurance Company and/or Woodman Union Life Insurance Company.
(5) The bill does not sufficiently state any facts on which the charge of fraud can be predicated, and the charge of fraud, as contained in the bill, is a pure conclusion of the pleader.
(6) The bill does not show by proper averment the assets which the complainants charge this defendant improperly handled, their value, or what disposition complainants claim this defendant made of the assets.
(7) The bill does not charge the facts on which is based the allegation that these complainants were discriminated against by this defendant in paying the value of their policies.
(8) The bill does not charge the facts on which is based the averment that this defendant is indebted to the complainants in a large sum, to-wit, many thousands of dollars.
(9) The complainants are not entitled to recover from the defendant any portion of the compensation paid to the defendant as trustee.
The bill in this case is a pure fishing bill, and is a typical proceeding to harrass a defendant by expensive litigation in the hope of forcing settlement. The bill does not charge a set of facts which this appellant should be required to answer, much less make proof on.
We respectfully submit that each and every one of the nine special demurrers interposed by the appellant to the original bill of complaint should have been sustained, and that this cause should be reversed and a decree entered here sustaining them, with leave to the appellees to amend within such time as the court may fix.
J.B. Stirling, of Jackson, for appellees.
This is a bill for discovery and accounting and it is very freely stated, in fact declared by the complainants, that it is impossible for them to know what they are entitled to until full discovery is made by the defendant as to what it got in the way of assets, what it deducted as compensation and what the defendant is liable for on account of neglect, carelessness and laches and maladministration. This defendant is declared in the bill to be trustee mala fide. All the information as to what it took, held and lost by maladministration and what it deducted as compensation, and what it concealed from these complainants, and of which they are ignorant, was information they are entitled to have requested, and had been refused. It was information which they could get in no other way, and all was in the exclusive knowledge of the defendant and it was its duty to discover. A fishing bill cannot be sustained, but a bill which states the facts within the knowledge of the complainant in clear and definite manner and with as much material particularity as the circumstances of the case justly permit, is not objectionable because the complete facts must be obtained by discovery from the defendant who alone has the means of knowledge concerning them.
North Carolina Mutual Life Ins. Co. v. Sanders, 186 Miss. 368, 188 So. 554; North Carolina Mutual Life Ins. Co. v. Green, 186 Miss. 377, 188 So. 556; Griffith's Chancery Practice, Sec. 174, p. 168, Secs. 427, 442, p. 448, Secs. 429, 430, pp. 451-452, Sec. 589, p. 657; Jones on Evidence (3 Ed.), Sec. 179, p. 242.
The bill in this case is a bill of discovery, and while considerable labor is necessary to parse out its allegations, owing to the failure of the pleader to follow a plain and analytically arranged course of averment, it contains allegations, nevertheless, sufficient to show that the matters about which discovery is prayed are relevant and material; that the specific and definite information about the facts of which discovery is prayed is within the exclusive possession of appellant; that requests have been made of appellant for the information which have been refused; that without the discovery complainants are not reasonably able to set forth the allegations in respect to their cause of action in more specific terms; but they do aver facts, when the exhibits are read as a part of the bill, sufficient to show that they have a cause of suit against appellant for some amount, more than nominal, and the nature of the grounds therefor.
Appellant did not challenge the bill by a general demurrer of no cause of action, the bill not being open to a general demurrer; but appellant filed a motion for a bill of particulars specifying nine different particulars as to which more definite averments in the bill were demanded. This motion if sustained would have required complainants to aver in their bill the specific factual details, which the bill on its face shows the complainants could not reasonably supply without the aid of the discovery sought. The motion having been overruled and properly so, appellant thereupon filed nine special demurrers setting forth separately the same grounds substantially as mentioned in the motion for a bill of particulars. In brief, the motion for a bill of particulars was transformed into nine special demurrers. The demurrers were overruled and an interlocutory appeal was allowed "in order to avoid expense and delay as well as to settle the controlling principles of the cause."
When a bill is sufficient as a bill of discovery, as this bill is, it is not competent to challenge it by a motion for a bill of particulars by special demurrers on grounds that, as to matters about which discovery is sought and is due, the bill does not allege in that detail and precision of averment required when the complainant is in possession of the facts which will enable him so to allege. The purpose of a bill of discovery is to obtain the specific information and to permit such a challenge would contravene or circumvent the reasons for which bills of discovery are allowed and have been throughout the long history of chancery — as a practical matter it would be to eliminate bills of discovery from our roster of remedies.
From what has been said it is at once apparent that the questions presented by the special demurrers raise issues belonging to the procedural or adjective or remedial side of the law and we have several times held that an interlocutory appeal will not lie from rulings on procedural or adjective matters. Stirling v. Whitney Nat. Bank, 170 Miss. 674, 683, 150 So. 654; Breland v. Lemastus, 183 Miss. 150, 183 So. 500; Lott v. Windham, 191 Miss. 849, 4 So.2d 342. Such rulings do not settle all the controlling principles in the case.
Nor are such appeals on procedural questions saved on the assertion that they avoid expense and delay. If such a bill stated no cause of suit, and in that respect is unamendable an interlocutory appeal on a general demurrer might save expense, but such is not the case here; and as to avoiding delay the appeal has caused delay, one reason pertinent to his case, being that it has intercepted answer and in consequence has delayed complainants of their avail of Section 1551, Code 1930, Section 1712, Code 1942, which cannot be used until issue has been joined. Givens v. Southern Exp. Co., 106 Miss. 834, 64 So. 737.
Appeal dismissed.
DISSENTING OPINION.
This appeal should not be dismissed, but the several questions raised by the appellant's demurrers to the bill of complaint should be decided. If, however, the appeal is to be dismissed the court should not decide, as it has, that the bill sets forth a case for a discovery, but if that question is to be decided, I am of the opinion that it does not so set forth.
McGehee, J., joins in the position taken in the first sentence of the dissent of the Chief Justice.