Opinion
No. 40168.
May 14, 1956.
1. Descent and distribution — evidence — sustained finding that descendants of named person were rightful heirs.
In suit to determine rightful heirs of decedent whose will had been held invalid, evidence sustained finding that descendants of certain person were rightful heirs.
Headnote as approved by Hall, J.
ON MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEFApril 2, 1956 86 So.2d 333
2. Appeal — amicus curiae brief — motion for leave to file — too late.
A motion for leave to file amicus curiae brief, not filed within time prescribed by court rule governing briefs for appellant and appellee, was too late and must be overruled, notwithstanding statement that appellants had consented to filing of such brief. Rule 7, Supreme Court Rules.
3. Appeal — amicus curiae briefs — filing of — generally.
Supreme Court Rule referred to in Headnote 1 is applicable to amicus curiae briefs, and they cannot be filed except in compliance with that rule as to time, except by written agreement of counsel, filed with clerk. Rule 7, Supreme Court Rules.
4. Appeal — amicus curiae briefs — filing of — generally.
Court may not entertain amicus curiae briefs except to the extent that they are confined to issues presented in pleadings and developed upon trial in Trial Court.
5. Appeal — amicus curiae briefs — filing of — generally.
Written agreement of counsel with reference to filing briefs amicus curiae referred to in Headnote 2 has reference only to time of filing of briefs as distinguished from right to file.
6. Appeal — amicus curiae briefs — filing of — rule.
Amicus curiae brief may be filed by approval of reviewing court, with or without written consent of all attorneys, but with proper regard to rights of attorneys to be allowed sufficient time to reply and with regard to avoidance of unnecessary delay.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Neshoba County; J.K. GILLIS, Chancellor.
Lee V. Prisock, Jackson; Neal Prisock, Louisville; Kepper Kepper, Hattiesburg, for appellants, Tennessee Burnside, et al.
I. The decree of the Court is contrary to the overwhelming weight of the evidence. Bishop v. Tulsa, 21 Okla. 457, 209 Pa. 228, 27 A.L.R. 1008; Campbell v. State, 21 Okla. Cr. 242, 206 P. 622, 29 A.L.R. 369; Denney v. State, 144 Ind. 503, 42 N.E. 929, 31 L.R.A. 726; People ex rel. Carter v. Rice, 135 N.Y. 474, 31 N.E. 921, 16 L.R.A. 836; Parker v. State, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 A.L.R. 561; 20 Am. Jur. pp. 98, 1031.
II. The Chancellor of the Lower Court erred in refusing the testimony of Estelle Moore as to declarations of the Sim and Mariah Burnside family made to him or in his presence. 31 C.J.S., Secs. 196, 227-28 pp. 398, 970.
III. The Court erred in excluding the testimony of Maudie Johnson, because a declaration of pedigree is admissible where there is an issue as to the relationship between two persons, and where there is a showing that the declarant was related to one of these two persons it was not necessary to show that the declarant was related to both parties. Carfa v. Albright, 39 Wn.2d 697, 237 P.2d 795; Hemonas v. Orphan, 191 S.W.2d 352, 360; Neustadt v. Coline Oil Co., 141 Okla. 113, 284 P. 52; Shea v. Hyde, 107 Conn. 287, 140 A. 486; 31 C.J.S., Sec. 229 (a) p. 977.
IV. The Court erred in excluding the testimony of James A. Duncan and W.R. Tindal, for where evidence of a particular matter, offered by one party, has been included in the evidence, over the objection of the adverse party, then the adverse party is entitled to introduce evidence with respect to same matter. Nave's Admr. v. Williams, 22 Ind. 368; Anaconda Copper Min. Co. v. Heinze, 27 Mont. 161, 69 P. 909; Chancellor v. Milly, 9 Dana 24, 33 Am. Dec. 521; Cole v. District Board, 32 Okla. 692, 123 P. 426, Ann. Cas. 1914A 459; Daniels v. Johnson, 216 Ark. 374, 226 S.W.2d 571, 15 A.L.R. 2d 1401; Gilliland v. Board of Education, 141 N.C. 482, 54 S.E. 413; Glenn v. Stewart, 167 Mo. 534, 67 S.W. 237; Gregory v. Baugh, 4 Rand 311, 2 Leigh 665; Hudgins v. Wrights, 1 Hen M. 134; Jones v. Schacter, 29 Ga. App. 132, 114 S.E. 59; Lewis v. Tapman, 90 Md. 294, 45 A. 459, 47 L.R.A. 385; Locklayer v. Locklayer, 139 Ala. 354, 35 So. 1008; Marshall v. Davies, 78 N.Y. 414, 420; Pegram v. Isabell, 2 Hen M. 193; St. Paul Plow Works v. Starling, 140 U.S. 184, 35 L.Ed. 404, 11 S.Ct. 803; Throckmorton v. Holdt, 180 U.S. 552, 45 L.Ed. 663, 21 S.Ct. 474; Vaughan v. Phebe, Mart Y 4, 17 Am. Dec. 770; Weaver v. Wheeling Traction Co., 91 W. Va. 528, 114 S.E. 131; 31 C.J.S., Sec. 190 p. 918; Jones on Evidence.
V. The Court erred in overruling objection of appellee because on direct examination of a witness, objection will lie to a question which embodies a material fact, and which admits of answer by a simple affirmative or negative, or which suggests to the witness the answer to make. United States v. Angell, 11 Fed. 34; Greenleaf on Evidence, Sec. 434; Jones on Evidence, Sec. 816.
VI. Where evidence of a particular matter offered by one party has been excluded, though perhaps improperly, on the objection of the adverse party, the other party is not entitled to introduce evidence with respect to the same matter. Fountain v. Reid, 214 Miss. 269, 58 So. 666; 20 Am. Jur., Sec. 468 p. 409.
Boydstrun Boydstun, Louisville, for appellants, Sally Price, Nannie Macon, and Princie Montgomery.
I. The Trial Court erred in granting order in case No. 4,110, ordering a new file and transferring papers in said cause No. 4,110, styled Mrs. Pearl Cheatham, et al. v. W.A. Burnside, in this Court No. 39,457, reported in 222 Miss. 872, 77 So.2d 719, at a time when said cause was pending in this Court and the mandate of this Court had not been sent to the Trial Court. Edmonds v. Delta Democrat Publishing Co., 221 Miss. 785, 75 So.2d 73; Reed v. Gregory, 46 Miss. 740; Secs. 1270-1272, 1283, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 236 p. 225.
II. The Trial Court committed error in: (1) holding that pleadings of these parties were contradictory, and (2) denying these appellants right to amend their pleading to comply and agree with the ruling of said Trial Court. Horne v. Higgins, 76 Miss. 813, 25 So. 489; Armstrong v. Jones, 198 Miss. 627, 25 So.2d 7; Allison v. Camp Creek Drainage Dist., 211 Miss. 354, 51 So.2d 743; Duncan v. Mars (Miss.), 44 So.2d 529; Jeffries v. Jeffries, 66 Miss. 216, 5 So. 112; Tishomingo Savings Institute v. Allen, 76 Miss. 114, 23 So. pp. 754, 958; Hart v. Potter, 80 Miss. 796, 31 So. 898; Sec. 1302, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 177 p. 163.
III. The Trial Court erred by denying appellants right to introduce rebuttal evidence, and holding that certain evidence introduced, or offered to be introduced, by these appellants was cumulative.
IV. The findings of law and facts, and the judgment of the Trial Court entered thereon, are contrary to the overwhelming weight of evidence presented in said cause. Mobile, J. K.C. RR. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Wise v. Wynn, 59 Miss. 588; Spears v. Burton, 31 Miss. 547; Lucas v. Goff, 33 Miss. 629; Columbus G. RR. Co. v. Lee, 149 Miss. 543, 115 So. 782; Yazoo M.V. RR. Co. v. Beasley, 158 Miss. 543, 130 So. 499; Mobile Ohio RR. Co. v. Johnson, 157 Miss. 266, 126 So. 827; Yazoo M.V. RR. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Louisville N. RR. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; 18 C.J., Secs. 123, 130 pp. 871, 875; 22 C.J., Secs. 9, 12, 226-27 pp. 66-67, 238-39; 23 C.J., Secs. 1786-1790 pp. 40-43, 45-47; 10 R.C.L., Secs. 92, 202, 301 pp. 928, 1010; Vol. IX, Encyclopedia of Evidence, pp. 738-39, 867.
Melvin, Melvin Melvin, Laurel; J.B. Hillman, Philadelphia; A.B. Amis, Jr., Newton, for appellees, in reply to appellants, Tennessee Burnside, et al.
I. The decree of the Court is not contrary to the overwhelming weight of the evidence. Campbell v. State, 29 A.L.R. 369; Andrews v. Simmons, 68 Miss. 732, 10 So. 65; Malone v. Pope, 189 Miss. 46, 196 So. 319; Sec. 1725, Code 1942; 20 Am. Jur., Evidence, Secs. 98, 1030.
II. The Chancellor of the Lower Court committed no error in refusing the testimony of Estelle Moore as to declarations of the Sim and Mariah Burnside family made to him or in his presence. Cone v. Benjamin (Fla.), 27 So.2d 90; In re Robb's Estate, 37 S.C. 19, 16 S.E. 241; Sitler v. Gehr, 105 Pa. 577, 51 Am. Rep. 207; Hutton's Law of Evidence (2d ed.), Sec. 14-5-1 p. 381; Jones on Evidence (4th ed.), Sec. 312.
III. The Court committed no error in excluding the testimony of Maudie Johnson. Anno. 31 A.L.R. 2d 1011.
IV. The Court committed no error in excluding the testimony of James A. Duncan and W.R. Tindal. White v. Weitz, 169 Miss. 102, 152 So. 484; First Natl. Bank v. Owen, 177 Miss. 339, 171 So. 4; Rosenbaum v. Bohannon, 204 Miss. 9, 36 So.2d 798; Union Planters Bank Trust Co. v. Rylee, 130 Miss. 907, 94 So. 796; Moore v. Decell (Miss.), 17 So. 681; Rule v. Rule (Miss.), 39 So. 782; Carter v. Catchings (Miss.), 48 So. 515; First Natl. Bank v. Owen, 177 Miss. 339, 171 So. 4; Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So.2d 351; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443; Griffith's Miss. Chancery Practice (2d ed.), Secs. 575, 674 pp. 601, 743.
V. A party complainant can have relief only on the case made by his bill of complaint, and it will not avail him to establish another and different case by his proof. Griffith's Miss. Chancery Practice (2d ed.), Secs. 565-66 pp. 587-88.
VI. If the decree be predominantly and clearly right according to law and the justice of the case and supported by any creditable evidence, this Court will not reverse. Fountain v. Reid, 214 Miss. 269, 58 So.2d 666; Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527; Andrews v. Simmons, supra; Malone v. Pope, supra.
Melvin, Melvin Melvin, Laurel; J.B. Hillman, Philadelphia; A.B. Amis, Jr., Newton, for appellees, in reply to appellants, Sally Price, et al.
I. All of the testimony of both sets of appellants shows beyond dispute and without contradiction that all of the appellants were descendants of slaves and were born slaves, their fathers and mothers were slaves; and appellees understand it to be the rule of law that where children were born of slave parents before 1869, that the burden was on appellants to prove that the parents were married by legal marriage before that time and were living together at that time and were later recognized by the parents, and the children acknowledged as their children. This the appellants did not do. However, it is not necessary here for the appellees to argue this point since the Chancellor found for the appellees on a strict question of fact which was amply supported by the evidence. Andrews v. Simmons, 68 Miss. 732, 10 So. 65; Malone v. Pope, 189 Miss. 46, 196 So. 319.
II. The appellees take the position that the Court should in no way confuse the issues and the litigation now before the Court, or the case now before the Court, with the case of Cheatham v. Burnside, 222 Miss. 872, 77 So.2d 719.
III. The Trial Court has determined that the petitions and issues were separate and independent from the Cheatham v. Burnside case, supra, and entered an order to such effect after the order was signed by attorneys representing all parties, including the appellants who now argue to this Court that it was all one and the same cause.
IV. Appellants argue that all parties were not before the Court at the time of the issuance of the decree here appealed from. It is the contention of the appellees that appellants cannot be heard to complain in view of the fact that they were in Court, and were in Court not only by proper process but by appearance and agreement, and also by waiver. Since the appellants appeared, filed an answer to all pleadings of the appellees and raised no objection to the setting of the case, in fact, agreed by signed agreement to the setting of the case, it is the contention of the appellees that they cannot be heard to complain here.
V. The great weight of authority, as well as the best among the reasons, supports the rule that Trial Courts cannot, in the determination of a particular case, take judicial notice of what was done in any other case, even in the same Court, so as thereby to supply facts essential to the support of the particular case out of those shown in prior case. Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7; McCandless v. Clark, 172 Miss. 315, 159 So. 542, 544.
VI. The Trial Court properly overruled appellants' motion to amend their bill of complaint. Miazza v. Yerger, 53 Miss. 134.
VII. It would have changed the frame and essential character of the bill. Clark v. Hull, 31 Miss. 520; Bank of Forrest v. Capital Natl. Bank, 176 Miss. 163, 169 So. 193; Hanserd v. Gray, 46 Miss. 75, 79; Duggan v. Champlin, 75 Miss. 441, 23 So. 179; Griffith's Miss. Chancery Practice (2d ed.), Sec. 392.
VIII. The Chancellor committed no error during the taking of the rebuttal testimony.
IX. Chancellor's findings of fact not reversible unless manifestly wrong. Wise v. Wynn, 59 Miss. 588; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 298; Johnson v. Miss. Cooperative Cotton Assn. (Miss.), 157 So. 479; James v. Federal Royalty Co. (Miss.), 44 So.2d 542; Thames v. Thames, 222 Miss. 617, 76 So.2d 707; Smith v. Fanning (Miss.), 25 So.2d 481; Howell v. Shannon, 80 Miss. 598, 31 So. 965; Mississippi Cotton Oil Co. v. Smith (Miss.), 33 So. 443; Meek v. Humphreys County, 133 Miss. 386, 97 So. 674; Mutual Life Ins. Co. v. Herron, 79 Miss. 381, 30 So. 691; Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Jackson v. Banks, 144 Miss. 392, 109 So. 905; City of Jackson v. Mims, 123 Miss. 78, 85 So. 124; Starnes v. Nation (Miss.), 97 So. 881; Humber v. Humber, 109 Miss. 216, 68 So. 161; Stevenson v. Swelley, 156 Miss. 552, 126 So. 195; Burns v. Horn Bros., 163 Miss. 482, 143 So. 431; Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Bacot v. Holloway, 140 Miss. 120, 104 So. 696; Young v. Elgin (Miss.), 27 So. 595; Coleman v. White (Miss.), 38 So. 336; Watkins v. McDonald (Miss.), 41 So. 376; Quine v. Walcott, 165 Miss. 325, 143 So. 424; Simmons v. Hutchinson, 81 Miss. 351, 33 So. 21; Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; Golden v. Bank of Lake (Miss.), 66 So. 782; Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652; Lenser v. Peoples Bank of Laurel, 57 Miss. 559, 40 So. 5; Purse v. Garrett, 142 Miss. 641, 107 So. 885; Stevens v. McGee, 81 Miss. 644, 33 So. 73; Melchoir v. Kahn (Miss.), 38 So. 347; Howell v. Shannon, 80 Miss. 598, 31 So. 965; Mississippi Cotton Oil Co. v. Smith (Miss.), 33 So. 443; Meek v. Humphreys County, 133 Miss. 386, 97 So. 674; Moyse v. Howie, 98 Miss. 30, 53 So. 402; Freeman v. Freeman, 107 Miss. 750, 66 So. 202; Carl v. Miller, 162 Miss. 760, 139 So. 851; Logan v. Right, 166 Miss. 451, 147 So. 662; Silver Creek Co. v. Hutchens, 168 Miss. 757, 151 So. 559; Dowling v. White's Lbr. Co., 170 Miss. 267, 154 So. 703; Huckaby v. Jenkins, 154 Miss. 378, 122 So. 487; Jeffries v. Jeffries, 66 Miss. 216, 5 So. 112; Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305; Hart v. Potter, 80 Miss. 796, 31 So. 898; Andrews v. Simmons, supra; Malone v. Pope, supra; Secs. 1390, 7064, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Secs. 674-75 p. 741; Hutton's Law of Evidence (2d ed.), Sec. 14-5-1 p. 381.
This is a sequel to the case of Cheatham v. Burnside, 222 Miss. 872, 77 So.2d 719. That decision involved a contest of the alleged last will and testament of Sim Burnside, deceased, and we there upheld a decree of the chancery court, based on a jury verdict, holding the will to be invalid.
Thereafter three different sets of heirs came into court and each set claimed to be the nearest of kin of the deceased. One set claimed to be the descendents of Betsy Burnside. Another set claimed to be the descendents of Tom Burnside. Another set claimed to be the descendents of Joseph Burnside, who was also sometimes known as John Burnside.
The trial consumed a week and the record consists of 946 pages. After patiently listening to all of the evidence the chancellor decided the issue in favor of the descendents of Joseph Burnside and rendered a decree accordingly, from which the other two sets of heirs appealed, each set claiming that the decision should have been in their favor according to the overwhelming weight of the evidence.
(Hn 1) We have carefully read and considered the entire record and we are of the opinion that the chancellor's decision is abundantly supported by the record and is certainly not manifestly wrong nor is it against the weight of the evidence, and on the merits the case must be affirmed.
There are some contentions in the briefs with reference to the reception of evidence and also with reference to the pleadings, but we do not think that any of these rulings constituted such error as to justify a reversal, nor do we think that another trial of the case would change the result.
Affirmed.
McGehee, C.J., and Lee, Kyle and Ethridge, JJ., concur.
ON MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
(Hn 2) The above mentioned motion comes too late. Under Rule 7 of the Revised Rules of this Court, it is required that a brief for the appellant shall be filed not later than thirty days before the date the case is set for hearing; that a brief for the appellee shall be filed not less than ten days before the date the case is set for hearing; and that any rejoinder brief shall be filed not later than three days before the date the case is set for hearing. It is further provided that this rule shall not apply where counsel have entered into a written agreement, filed with the Clerk of this Court, relative to the filing of briefs. The above styled cause is set for hearing on Monday, April 23, 1956. The motion for leave to file amicus curiae brief states that the appellants have consented to the filing of such brief. The motion is supported by an affidavit to the effect that a copy thereof has been served on Henry Edmonds on "the day of March 1956." It is required that three days notice be served on opposing counsel, and it appears that there are several attorneys of record in this case.
(Hn 3) We hold that Rule 7 hereinabove referred to is applicable to amicus curiae briefs, and that they cannot be filed except in compliance with that rule as to the time of the filing thereof, except by written agreement of counsel, filed with the clerk, relative to the filing of briefs. (Hn 4) Moreover, even then the Court would not be justified in entertaining amicus curiae briefs except to the extent that they are confined to the issues presented in the pleadings and developed upon the trial of the case in the trial court.
The instant motion is for leave to file an amicus curiae brief on behalf of Ollie Burnside, and the same is presented in her name, by her attorney. It raises the question of whether or not she is a necessary or proper party to the cause on the alleged ground that she is a first cousin of the deceased Sims Burnside and is next of kin. We assume therefore that one of the issues in the case is as to who the heirs-at-law are of the said deceased Sims Burnside. That issue is one for the determination of the trial court, upon being properly presented, and not for the determination of this Court, unless her relationship to the deceased is affirmatively shown by the pleadings or by the evidence upon the trial.
The motion further avers that the "Movant is in possession of demonstrative evidence, expert evidence as to scientific facts relating to an exact science and facts that have probative value to the case at bar." We are not concerned on this appeal with any facts not admitted in the pleadings or established by the evidence on the trial of the case in the trial court. We have no facilities for hearing proof on factual issues in this Court, and we can determine the rights of the parties only on the basis of the record sent us from the trial court.
(Hn 5) It is to be observed that what is said in the second paragraph of this opinion in regard to written agreement of counsel has reference only to the time of the filing of briefs. (Hn 6) An amicus curiae brief may be filed by approval of this Court, whether with or without the written consent of all of the attorneys representing the respective litigants, but with proper regard to the rights of the attorneys to be allowed sufficient time to reply to such a brief and also with regard to avoiding unnecessary delay in the disposition of the case. An amicus curiae brief filed in truth and in fact "as a friend of the court", as the term implies, is frequently very helpful. And there are times when the court actually needs a friend.
For the reasons hereinbefore set forth, it is necessary that the instant motion for leave to file an amicus curiae brief be overruled.
Motion overruled.
All justices concur, except Hall, J., who took no part.