Opinion
No. 36406.
April 21, 1947. Suggestion of Error Overruled May 19, 1947. Motion to correct Judgment Overruled June 2, 1947.
1. EQUITY.
Where defendants in suit for determination of title made their answers cross-bills, seeking confirmation of title on ground of adverse possession and of title based on different deeds than relied on by complainants, complainants had no right to dismiss without prejudice and at same time secure dismissal of cross-bills without consent of cross-complainants.
2. EQUITY.
Rule that dismissal of original bill carries cross-bill with it has been departed from so that if cross-bill seeks affirmative relief independently of original bill, though growing out of or touching the same subject matter as it must, court will at insistence of cross-complainants retain it and proceed with its issues if cross-bill and its facts are complete enough, within themselves and without aid of original bill, to make granting of relief thereon practicable and proper.
3. EQUITY.
Retaining cross-bill upon dismissal of original bill is within Court's sound discretion, to be wisely exercised towards advancement of justice between parties.
4. EQUITY.
Any practice which tends to turn parties out of court when once fairly in, and to send them away either to transform the pleadings or else begin the matter over again, is disfavored.
5. EQUITY.
Cross-bill will be retained where it would have been retained, if matter therein had been brought in an original bill, and will be dismissed merely because original bill has been dismissed, only where matters of cross-bill independently considered, are so clearly of law as to be a better subject of determination at law.
6. QUIETING TITLE.
The right to have affirmative adjudication in chancery of title to realty is conferred by statute, supplementary to ancient rules in equity on that subject.
7. EQUITY.
That one of several defendants filed no objections to complainants' motion to dismiss original bill for determination of title, and thus did not insist that its cross-bill for confirmation of title be retained, did not preclude retention of its cross-bill where it was present and participated in by attorney in hearing on motion to dismiss.
8. APPEAL AND ERROR.
Where trial court refused to permit dismissal of original bill for determination of title, to realty, and adjudicated under cross-bills for confirmation of title every question that could have been determined under original bill, against original complainants and in favor of cross-complainants, the whole matter became res judicata, and whether original bill should have been dismissed, retaining the cross-bills, was a moot question on appeal from decree for defendants.
ON MOTION. (In Banc. May 12, 1947.) [30 So.2d 421. No. 36406.]1. COURTS.
A case in a division may be transferred to the full court only as provided by the Constitution and by a division upon its own motion when the division deems it expedient or proper to do so, but never on the motion of a party litigant (Const. 1890, sec. 149A).
2. JUDGES.
When one of the judges of a division is disqualified in a particular case, a litigant may suggest to the presiding judge that for that reason, and for that reason alone, the case should be transferred to the other division, but a litigant has no right to have the cause transferred (Const. 1890, sec. 149A).
3. COURTS.
It is not necessary to make any entry on the minutes when the court decides to go into divisions or from divisions to the court in banc (Rules of the Supreme Court, rule 34).
4. COURTS.
Where the court determined to sit in divisions on and after a certain date until further notice and officially informed the clerk of its decision and the clerk in writing so notified all persons having business before the court with lists of cases to be heard by the divisions, everything necessary to lawfully sitting in divisions was done (Rules of the Supreme Court, rule 34).
APPEAL from the chancery court of Jasper county. HON. GEO. B. NEVILLE, Chancellor.
Lamar F. Easterling, George E. Shaw, Lester C. Franklin, and Robert E. Perry, all of Jackson, and Cameron Wills, of Meridian, for appellants.
The rule is that every complainant has a right to dismiss.
Canadian A. Mortgage Trust Co. v. Fitzpatrick, 71 Miss. 347, 354, 14 So. 270; Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435; Code of 1942, Sec. 1412, 1538; Griffith's Mississippi Chancery Practice, Sec. 534.
This Court has recognized exceptions to the rule and has pointed the way to the character of those exceptions.
State v. Hemingway et al., 69 Miss. 491, 10 So. 575; Canadian A. Mortgages Trust Co. v. Fitzpatrick, supra; Russell v. Denson, 98 Miss. 859, 862, 54 So. 439; Adams v. Lucedale Commercial Co., supra; Northern v. Scruggs, 118 Miss. 353, 372, 79 So. 227, 123 Miss. 169, 85 So. 89; Pennington v. People's Bank et al., 132 Miss. 23, 95 So. 694; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386, 103 So. 144; Schaffer v. Deemer Manufacturing Co., 108 Miss. 257, 66 So. 736; Mitchell et al. v. Film Transit Co., 194 Miss. 550, 13 So.2d 154; Chicago, etc., Co. v. Union, etc., Co., 109 U.S. 702, 27 L.Ed. 1081; Griffith's Mississippi Chancery Practice, Sec. 534.
The contentions that complainants unreasonably delayed the progress of the suit, that complainants obtained advantage by addressing interrogatories to non-resident defendants, and that complainants obtained an unconscionable advantage by the motions filed by them to inspect documents and the court's decree thereon, are all without merit.
Keith v. Yazoo M.V.R. Co., 164 Miss. 566, 145 So. 227; Thomasson et al. v. Kinard, 153 Miss. 398, 121 So. 109, Day v. Cochran, 24 Miss. 261; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477; Jones et al. v. Taylor, 156 Miss. 790, 126 So. 821; Code of 1942, Secs. 1458, 1659, 1947; Griffith's Mississippi Chancery Practice, Secs. 147-8, 534; 2 Black's Commentaries, p. 147.
The contention that complainants have contracted to make the court below the final arbiter of the issues in this case is without merit.
Reliance Inv. Co. v. Johnson, 188 Miss. 227, 193 So. 630, 194 So. 749; Hartford Accident Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93; State ex rel. Whall v. Saenger Theatres Corporation, 190 Miss. 391, 200 So. 442; Sartin v. Barlow ex rel. Smith 196 Miss. 159, 16 So.2d 372; Sherrill v. Stewart, 196 Miss. 422, 17 So.2d 443, 197 Miss. 880, 21 So.2d 11; Mutual Reserve, etc., Ass'n v. Cleveland Woolen Mills, 82 F. 508; Detwiler v. Lowden et al. (Minn.), 269 N.W. 367, 838, 107 A.L.R. 1054; American Wood Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379; Code of 1942, Secs. 906, 1539; Griffith's Mississippi Chancery Practice, Secs. 379, 384, 535, 585; 12 Am. Jur. 832; 32 Am. Jur. 108 et seq.; 59 A.L.R. 1445.
The final decree was rendered at a special term of court and is void.
Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So.2d 852; Griffith's Mississippi Chancery Practice, p. 88, Sec. 86, 263.
Stevens Cannada, of Jackson, and Buchanan Harper, of Laurel, for appellees, the Talmadge D. Lewis family.
Under our objections to a dismissal, the motion to dismiss without prejudice was properly overruled. The objections are as follows: (1) complainants barred by laches; (2) discovery had been sought and compelled; (3) the provisions of the protective leases justified the court in overruling the motion to dismiss; (4) complainant by assigning 7/8ths of the minerals could not dismiss without the consent of their assignee; (5) the interests of the landowners, as defendants, and their mineral lessees, the Gulf and Tidewater, are so inter-related and their interest and their rights are referred to in the protective leases in such way that the landowners-defendants have the same right to invoke the principle of estoppel against the right of the complainants to dismiss as either the Gulf or the Tidewater; (6) the provisions of the protective leases made unnecessary the filing of any cross-bill; (7) the Gulf had filed cross-bill to which the landowner-defendants are necessary parties and both the Gulf and its lessor-defendants could object to a dismissal because of said cross-bill; and (8) it was the duty of the court in the interest of the minor defendants to overrule the motion.
Collation of authorities: Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154; Northern v. Scruggs, 118 Miss. 353, 79 So. 227; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386, 103 So. 144; Millsaps v. Bond, 64 Miss. 453, 1 So. 506; Servis v. Beatty, 32 Miss. 52; Smith v. Everett, 50 Miss. 575; Steling Products Co. v. Watkins-Gray Lumber Co., 131 Miss. 145, 95 So. 313; Wilson v. Buxton (Fla.), 149 So. 329; Coultas v. Green, 43 Ill. 277; City of Detroit v. Detroit City Railway Co., 55 F. 569; Pullman Palace Car Co. v. Central Transportation Co., 171 U.S. 138, 43 L.Ed. 108; Griffith's Mississippi Chancery Practice, Secs. 534-535; 1 Whitehouse on Equity Pleadings, Secs. 332; Gibson's Suits in Chancery, Sec. 72, 523; Fletcher on Equity Pleading and Practice, Sec. 563.
Complainants are estopped to dismiss.
Kline v. Burke Construction Co., 67 L.Ed. 226, 24 A.L.R. 1077; Calcote v. Texas Pacific Coal Oil Co., 157 F.2d 216; 18 C.J. 1150, footnote 84; 27 C.J.S. 166, Sec. 12, p. 182, Sec. 26, p. 186, Sec. 28; 4 L.R.A. Digest, Key Nos. 138, 149.
Discovery had in fact been obtained by the complainants, especially as to the title deeds under which defendants claim title and are in possession.
Complainants' suit was and is barred by laches, and if on the record it was barred by laches then the complainants do not have the right to ask this Court to become a party to the laches by permitting them to dismiss without prejudice and thereby maintain their right to assert a stale claim.
Comans v. Tapley, 101 Miss. 203, 57 So. 567, 573; Horn v. Beatty, 85 Miss. 504, 37 So. 833; Cross v. Hedrick, 66 Miss. 61, 7 So. 496; State v. Woodruff, 170 Miss. 744, 150 So. 760; Vanlandingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74; Penn Mutual Life Ins. Co. v. Austin, 42 L.Ed. 626; Hays v. Seattle, 251 U.S. 233, 64 L.Ed. 243; Matt v. Helms (Ala.), 20 So.2d 461; Thornton v. Mayor, etc., of the City of Natchez, 129 F. 84; Twin Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328; Patterson v. Hewitt, 195 U.S. 309, 49 L.Ed. 214; Taylor v. Salt Creek Consolidated Oil Co., 285 F. 532; Willard v. Wood, 164 U.S. 502, 524, 17 S.Ct. 176, 41 L.Ed. 531, 540; Jackson v. Jackson, 175 F. 710; Pittsburgh Lake Angeline Iron Co. v. Cleveland Iron Mining Co., 178 U.S. 270, 20 S.Ct. 931, 44 L.Ed. 1065; Societe Fonceire Des Etats Unis v. Milliken, 135 U.S. 304, 10 S.Ct. 823, 34 L.Ed. 208; Sturn v. Wiess, 273 F. 457; Curtis v. Lakin, 94 F. 251; Johnson v. Standard Mining Co., 148 U.S. 360, 371, 13 S.Ct. 585, 589, 37 L.Ed. 480, 486; Murphy v. Johnson (Tex.), 54 S.W.2d 158; Childs v. Missouri, Kan. Tex. R. Co., 221 F. 219, 222; Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738; Abraham v. Ordway, 158 U.S. 416, 15 S.Ct. 894, 39 L.Ed. 1036; Buckler v. Black, 226 F. 703; Spiller v. St. Louis S.F.R. Co., 14 F.2d 284, 288; Somers v. Spaulding, 229 Iowa 440, 294 S.W. 610, 614; Preston v. Kaw Pipe Line Co., 113 F.2d 311, 313; City of Detroit v. Detroit City R. Co., 55 F. 569.
Green Green, of Jackson, and Welch, Cooper Welch, of Laurel, for appellee, Ridgway group.
Between Margiree Jones and the Gulf there existed a relation of privity in estate so that the Gulf, claiming under and through Margiree Jones, was obligated quo ad Margiree Jones to bear fealty to her title and not so circumstanced as that claiming under and through the Margiree Jones title that it could acquire an adverse title.
Johnson v. Langston, 179 Miss. 622, 176 So. 531; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Johnson v. Carter, 193 Miss. 781, 11 So.2d 196; Patridge et al. v. Riddick, 174 Miss. 258, 164 So. 221; Whitefield v. Miles, 101 Miss. 734, 58 So. 8; Robinson v. Lewis, 68 Miss. 69, 8 So. 258; Hamblet v. Harrison, 80 Miss. 118, 31 So. 580; Fox v. Coon, 64 Miss. 465, 1 So. 629; Clark v. Rainey, 72 Miss. 151, 16 So. 499; Walker v. Woods, 166 Miss. 471, 148 So. 354; Staton v. Henley, 130 Miss. 372, 94 So. 237; 32 Am. Jur. 118; 35 C.J. 1239.
Assuming that this Court has jurisdiction as to the Gulf Refining Company and dismissal should not be granted of the appeal, still affirmance of the Chancellor's decree should be had, because rights acquired by appellee, Gulf Refining Company, under protective lease precluded appellant from dismissal.
Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, 737; Lloyd's Estate v. Mullen Tractor Equipment Co., 192 Miss. 62, 4 So.2d 282; Merrill Engineering Co. v. Capital National Bank, 192 Miss. 378, 5 So.2d 666; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386; Orrell v. Bay Manufacturing Co., 83 Miss. 800, 36 So. 561, 564; Blakey v. Blakey (Ky.), 3 J.J. Marshall 674; Hirshfield v. Fitzgerald, 157 N.Y. 166, 51 N.E. 997, 46 L.R.A. 839; Jarvis Ex'r. v. Interstate Coal Co., 257 Ky. 656, 78 S.W.2d 926; Guice v. Burrage, 156 F.2d 304; Keegan v. Humble Oil Refining Co., 155 F.2d 971; Calcote v. Texas Pacific Coal Oil Co., 157 F.2d 216, cert. den. 91 L.Ed. 80; Code of 1857, Ch. 61, Art. 160; Code of 1871, Sec. 642; Code of 1880, Sec. 1722; Code of 1892, Sec. 741; Code of 1906, Sec. 803; Code of 1930, Sec. 594; Code of 1942, Secs. 1448, 1449, 1450, 1538, 1539; Griffith's Mississippi Chancery Practice, Sec. 534, p. 579; 17 Am. Jur. 61, Sec. 7.
Cross-bills filed by Gulf and the Ridgways precluded complainants' dismissal of the entire suit, because herein that substantially being done was the prosecution of a suit in rem or quasi in rem.
Ravesies v. Martin, 190 Miss. 92, 199 So. 282; Stanley v. Cruise, 134 Miss. 542, 99 So. 376; Wilkerson v. Jenkins, 77 Miss. 603, 27 So. 611; Moore v. Pate, 39 F.2d 616, cert. den. 282 U.S. 853, 75 L.Ed. 755; Amusement Syndicate Co. v. El Paso Land Improvement Co., 251 F. 345; Dennison Brick Title Co. v. Chicago Trust Co., 286 F. 818; Lion Bonding Surety Co. v. Karatz, 262 U.S. 77, 90, 67 L.Ed. 871; Kline v. Burke Construction Co., 260 U.S. 226, 67 L.Ed. 226; Griffith's Mississippi Chancery Practice, Secs. 152-157; Hughes on Federal Procedure, Sec. 338.
Defendants, the Ridgway group, likewise filed a cross-bill of similar import to the cross-bill of the Gulf, which cross-bill was being created in the same wise as was the cross-bill of the Gulf, and though there was no specific response by cross-defendant thereto, the cross-bill was pending undetermined at the date of the application by cross-defendant to dismiss, and we adopt the brief of the Gulf as to the cross-bill, the same rights being given the Ridgway group thereasto.
Herein, that substantially is an interpleader wherein the oil companies having protective leases are producing and that sought is by the original complainant to dismiss after the oil companies holding protective leases have as against all parties continued production, whereby either the Hudsons on the one part or the Lewis, et al., on the other part, are to have that thus produced as specifically specified in Section 14 of the contract, wherein the leases from those other than the Hudsons are definitely set forth and having so been, the position is that these leases are to be regarded as valid — appellee so claiming and having the right to thus do.
People's Bank in Liquidation v. Pennington, supra; 27 C.J.S. 185, note 38.
Due to the peculiar character of this suit and the nature of discovery had, substantially as though by decretal order, the appellees insist that the advantage to it accruing precludes dismissal.
Appellees concur in and rely upon the advantage obtained through the inspection and proceedings thereasto had.
The Gulf definitely relies strenuously upon its rights obtained by its deed and submits that instrument is conclusive beyond peradventure.
Defendants insist that the deed here made was not in any sense a co-lessor's agreement. On the contrary, it was separate and distinct and speaks for itself, imposing upon the Hudsons those burdens therefrom palpably apparent, but with all for full value specifically consented to.
Appellant avers Gulf's lease was not a part of the record. While this may be technically, at that time, true, nevertheless, as between the Hudsons and appellees the rights thereby conferred, the conveyance thereby effected, were binding and were appropriately considered by the court. When such a motion is made, no response is requisite and the burden rests upon the movant to carry forward the entire issue. Appellees protest against any idea that they have not consistently throughout this litigation relied upon that wherefor was thus paid. At all times and at all places where this cause has been heard, the appellees have been present by their counsel and have sought both in the State and the Federal Court to obtain that wherefor it in good faith contracted and whereto it avers it is lawfully entitled, namely, to be free of responsibility upon the termination of Cause 398 so far as the Hudsons are concerned.
Appellees are entitled to the protection of the chancery court of Jasper County in virtue of express contract provisions.
State v. Armstead, 103 Miss. 790, 60 So. 778; Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78; Forest Product Manufacturing Co. v. Buckley, 107 Miss. 897, 66 So. 279; Bradley v. Howell, 161 Miss. 346, 134 So. 843; Fornea v. Goodyear Yellow Pine, 181 Miss. 50, 178 So. 914; Lloyd's Estate v. Mullen Tractor Equipment Co., supra; Chism v. Hollis, 152 Miss. 772, 118 So. 713; Crawford v. Mobile, J. K.C.R. Co., 83 Miss. 708, 36 So. 82, 102 Am. St. Rep. 476; Tribette v. Illinois Cent. R. Co., 71 Miss. 212, 13 So. 899; Southern Express Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385; Clement v. Western Union Telegraph Co., 77 Miss. 747, 27 So. 603; Hartzog v. Western Union Telegraph Co., 84 Miss. 448, 36 So. 539; Dodson v. Western Union Telegraph Co., 97 Miss. 104, 52 So. 693, 694; General Accident, Fire Life Assur. Co. v. Walker, 99 Miss. 404, 55 So. 51; Standard Accident Ins. Co. v. Broom, 111 Miss. 409, 71 So. 653; National Casualty Co. v. Mitchell, 162 Miss. 197, 138 So. 808; Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 887, 888; Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 356, 144 So. 554, 558; Mutual Life Ins. Co. of New York v. Hebron, 166 Miss. 145, 146 So. 445, 447; Hartford Accident Indemnity Co. v. Delta Pine Land Co., 169 Miss. 196, 150 So. 205, 207; Brown v. British American Mortgage Co., 86 Miss. 388, 38 So. 312; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763, 765; Duke v. Shackleford, 56 Miss. 552; Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Standard Construction Co. v. Brantley Granite Co., 90 Miss. 16, 43 So. 300; State ex rel. Collins v. Standard Construction Co., 118 Miss. 469, 78 So. 625, 628; Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808, Campbell v. Lovgren, 171 Miss. 385, 157 So. 901; Pafhausen v. State, 94 Miss. 103, 47 So. 897; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Lockard v. Hoye, 113 Miss. 238, 74 So. 137; Hartford Accident Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93, 772, 193 Miss. 850, 11 So.2d 309; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277, 278; Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557; Roberts v. State (Miss.), 144 So. 47; Smith v. Moore, 3 How. (4 Miss.) 40; Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7; Gillespie v. Doty, 160 Miss. 684, 135 So. 211; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Mutual Reserves, etc., Ass'n v. Cleveland Woolen Mills, 82 F. 508; Syracuse Plaster Co., Inc., v. Agnostinie Bros. Building Corp., 7 N.Y.S. 897, 169 Misc. 564; Greve v. Aetna Live Stock Ins. Co., 81 Hun. 28, 30 N.Y.S. 668; Trott v. State, 41 N.D. 614, 17 N.W. 827; Detwiler v. Lowden et al., 198 Minn. 185, 269 N.W. 367, 107 A.L.R. 1054; Duncan v. Thompson (Mo.), 146 S.W.2d 112, 314 U.S. 589, 86 L.Ed. 575; Herrington v. Thompson, 61 F. Supp. 903; Clark v. Lowden, 48 F. Supp. 261; Roland v. Atchison, T. S.F.R. Co., 65 F. Supp. 630; Calahan v. Martin, 3 Cal.2d 110, 43 P.2d 788, 101 A.L.R. 871; Rist v. Toole County (Mont.), 159 P.2d 340, 162 A.L.R. 406; Hovey v. Elliott, 167 U.S. 407, 42 L.Ed. 215; Fiswick v. United States, 15 L.W. 4056; St. Pierre v. United States, 319 U.S. 41, 87 L.Ed. 1199; 11 Am. Jur. 1136, Sec. 329; 20 Am. Jur. 52, Sec. 21; 31 Am. Jur. 179, Sec. 581; 15 C.J.S. 811; 16 C.J.S. 615, 619, Sec. 210; 17 C.J.S. 606, Sec. 229, note 72, p. 1169, Sec. 537; 26 C.J.S. 712; 113 A.L.R. 258; 15 R.C.L., Judicial Notice, Sec. 3; Elliot on Contracts, Sup. 1931, Sec. 730; 6 Williston on Contracts, p. 4872, Sec. 1725; 2nd Minor's Institute, p. 265; Broom's Legal Maxims, pp. 163, 327, 348; Restatement of the Law, Contracts, pp. 359, 360, Sec. 250, Mississippi annotations.
Green Green, C.C. Richmond and Irwin W. Coleman, all of Jackson, Welch, Cooper Welch, of Laurel, Wilbourn, Miller Wilbourn, of Meridian, and John E. Green, Jr., of Houston, Tex., for appellee, Gulf Refining Company.
A complainant's right to dismiss his case without prejudice is not absolute and under the facts and circumstances here the chancellor did not err in overruling appellants' motion to dismiss without prejudice.
Mississippi Cent R. Co. v. Beatty, 35 Miss. 668, 672; Canadian A. Mortgage Trust Co. v. Fitzpatrick, 71 Miss. 347, 14 So. 270; Russell v. Denson, 98 Miss. 859, 862, 54 So. 439; Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435; Northern v. Scruggs, 118 Miss. 353, 79 So. 227; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Shaw v. State, 188 Miss. 549, 195 So. 581; Griffith's Mississippi Chancery Practice, Secs. 407, 534.
Appellants' attempted dismissal, if at all effective, did not operate to dismiss Gulf Refining's cross-bill, and this appellee is entitled to an affirmance of the chancellor's decree rendered in its favor on said cross-bill.
Ladner v. Ogden, 31 Miss. 332; Gilmer v. Felhour, 45 Miss. 627; Dewees v. Dewees, 55 Miss. 315; Sigman v. Lundy, 66 Miss. 522, 6 So. 245; Peoples Bank in Liquidation v. Pennington, supra; Federal Credit Co. v. Newman (Miss.), 16 So.2d 619; May v. Hubbard, 94 Miss. 456, 49 So. 619; Bay v. Shrader, 50 Miss. 326; Phoenix Ins. Co. v. Smith, 95 Miss. 347, 48 So. 1020; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Small v. Peters, 104 F. 401; Code of 1942, Sec. 1296; Griffith's Mississippi Chancery Practice, Secs. 361, 375, 376, 380, 384, 385; 17 Am. Jur. 77, Sec. 33; 27 C.J.S. 183, Sec. 27.
Appellants having made appearance in court after their motion to dismiss was overruled and sought relief therein, effected a waiver of any right to dismiss as against any of the appellees, even if such right precedently existed.
McCoy v. Watson, 154 Miss. 307, 122 So. 368; Afro-American Sons and Daughtes v. Webster, 172 Miss. 602, 161 So. 318; Gridley, Maxon Co. v. Turner, 179 Miss. 890, 176 So. 733; Mississippi Cottonseed Products Co. v. Champion, 200 Miss. 460, 27 So.2d 684; Turner v. Williams, 162 Miss. 258, 139 So. 606; Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154; Bestor v. Inter-County Fair, 135 Wis. 341; Clark v. Bankers Accident Co., 96 Neb. 385; Fulton v. Ramsey et al., 57 W. Va. 321; McKillips v. Harvey, 80 Neb. 266; State v. Grimm, 239 Mo. 135, 143 S.W. 483; Winter v. Union Packing Co., 51 Or. 97, 93 P. 930; Cloise v. Justice's Court of First Judicial Township, 103 P. 319; Benedict v. Seiberling, 17 F.2d 841; Hammond v. District Court, 30 N.M. 130, 228 P. 758, 39 A.L.R. 1490, 1497.
Buchanan Harper, of Laurel, for appellees.
This cause was triable at the special May 1946 term of Chancery Court in the First Judicial District of Jasper County, Mississippi.
Williams Brothers et al. v. Bank of Blue Moutain, 132 Miss. 178, 95 So. 843; Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738.
The act of the appellants in filing suits against these appellees in the United States District Court for the Southern District of the Eastern Division of Mississippi on one day and on the next day a motion to dismiss this cause No. 398 in the chancery court of the First Judicial District of Jasper County, Mississippi, was an abortive attempt on the part of complainants in a suit filed in the state court to circumvent a decree of the state court and to transfer the cause to the United States District Court, contrary to the prohibition of statute.
Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Hume v. Inglis, 154 Miss. 481, 122 So. 535; Calcote v. Texas Pacific Coal Oil Co., 157 F.2d 216; Keegan v. Humble Oil Refining Co. et al., 155 F.2d 971.
The fiduciary relationship between lessor and lessee in an oil, gas and mineral lease being such that neither shall so conduct himself in regard to the leased premises as to prejudice the substantial rights of the other, these appellees acquired rights in the compromise settlements made by their lessees with appellants, while the relationship of lessor and lessee existed between these appellees and their said lessees.
Johnson v. Langston, 179 Miss. 622, 176 So. 531; Simpson et al. v. Ricketts et al., 185 Miss. 280, 186 So. 318; Federal Land Bank et al. v. Collum et al., 201 Miss. 266, 28 So.2d 126.
Dismissal of this suit without prejudice will not leave the defendants as to all the substantive incidents of the suit in the same position in which they would have stood had no suit been filed. In the progress of the suit, defendants had secured substantial advantages which would be lost to them should the suit be dismissed without prejudice.
State v. Hemingway, 69 Miss. 491, 10 So. 575; Canadian A. Mortgage Trust Co. v. Fitzpatrick, 71 Miss. 347, 14 So. 270; Northern v. Scruggs, 118 Miss. 353, 79 So. 227; People's Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386, 103 So. 144; Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154; Griffith's Mississippi Chancery Practice, Sec. 534.
Welch, Cooper Welch, of Laurel, for appellees.
Come now Welch, Cooper Welch, solicitors for the appellees named below, to-wit: Joseph M. Perkins, Edmond L. Brown, Kenneth H. Wasson, Mrs. Emma Bethea, S.L. Tennant, C.M. Beckett, J.W. Peery, Merlyne Christie, P.C. Morrison, C.B. Small, Jr., W.O. White, Claud B. Hamill, Donald P. Ross, and E.A. Stiller, and the said appellees adopt as their own the brief of Messrs. Buchanan and Harper, attorneys, Laurel, Mississippi, filed in behalf of T.D. Lewis, one of the appellees.
Wells, Wells, Newman Thomas, of Jackson, and Beard Pack, of Laurel, for appellees, Tide Water Associated Oil Company and Mrs. Mamie M. Abney.
By the court's decree denying complainants access to the confidential files of Tide Water, the appellee Tide Water acquired a substantial right in this cause. For value, appellants contracted with appellee Tide Water that title to the Tide Water tract should be finally determined in the pending cause. The motion to dismiss without prejudice was properly overruled. A.S. Scott, of Laurel, for appellees, Norman Husband, Carrie Kelly Husband, Jettie Kelly Windham, George Windham, Marjorie Jones and Ab Jones.
These appellees adopt the briefs of other appellees now on file in said cause.
Argued orally by Ben F. Cameron, for appellants, and by J.R. Buchanan, J. Morgan Stevens and R.E. Wilbourn, for appellees.
Thirteen heirs of N.L. Hudson, Sr., claiming to be the sole and only owners in fee of the 360 acres of land described, as well as of all the mineral interests therein, filed their bill in the Chancery Court of Jasper County against 106 defendants, including the Gulf Refining Company (which, under a mineral lease from certain of its codefendants, had developed and was developing its holdings into an actual oil-producing acreage), and against other defendants, who in addition to Gulf Refining Company, claim under other mineral leases covering in the aggregate all of the lands in question.
The claim of the said Hudson heirs is that during the year 1878 or 1879, N.L. Hudson, Sr., the then owner of the land, had conveyed all of it to his wife, M.E. Hudson, for the term of her natural life, and at her death to the children of said N.L. Hudson, Sr., for life, the remainder in fee to their children; that the deed was duly recorded, but the record thereof was destroyed by the courthouse fire in September 1932; and that complainants have not been able to find the original deed for recordation. It was further averred that N.L. Hudson, Sr., died in 1895, and M.E. Hudson, in 1928, and that subsequently to the date of the deed conveying a life estate to her, M.E. Hudson had executed deeds of conveyances to various grantees as if she owned the title in fee simple. Complainants, appellants here, also charged that by these conveyances the 106 defendants were, as latest grantees or their heirs, the present adverse claimants; and that by reason of the facts, supra, appellees had become, and remained since the death of M.E. Hudson, the tenants as sufferance of the complainant heirs.
Nearly all of the numerous defendants answered, and Gulf Refining Company and some twenty-five other defendants made their answer cross-bills. The answers denied that Hudson had made any such deed to his wife in 1878 or 1879, or at any other time in any such terms as asserted by complainants. On the contrary, they averred that, in fact, Hudson had made his wife, M.E. Hudson, on January 23, 1880, a deed to the lands in fee simple absolute, this deed being recorded in Book 20, p. 135 of the record of deeds of the county. The defendants, appellees here, averred also that by unbroken chains of title from M.E. Hudson to them, as well as by more than forty years of adverse possession, they have become the owners, and that the complainants never in fact owned any interest what ever in the lands.
The answer by Gulf Refining Company, in addition to elaborate denials and averment touching the title by executed conveyances, adequately alleged adverse possession in its predecessors in title for the long period of years aforesaid. Making its answer a cross-bill, it prayed that its mineral lease be confirmed as against the original complainants, and prayed for alternative as well as for general relief. The twenty-five other defendants who made their answers cross-bills, in addition to setting up their particular interest in the premises, adopted all the denials and averments of the answer of the Gulf Refining Company and likewise, and as stated, made their answers cross-bills. The answer and cross-bill of Gulf Refining Company was filed on Sept. 16, 1944, and those of the other twenty-five cross-complainants on September 30, 1944. On December 12, 1945, the complainants filed a motion to dismiss their original bill aforesaid without prejudice, which motion was actively resisted by numerous of the original defendants, and the motion was overruled.
Had there been no cross-bills, it may have been that the complainants would have had the right to dismiss, as they sought to do, but leaving that question aside for the moment, we are of the opinion that they had no right to do so and at the same time secure the dismissals of the cross-bills, unless by the consent, express or implied, of the cross-complainants.
In days gone by it was the general rule that the dismissal of the original bill carried with it the cross-bill, but the modern rule, and particularly in this State, is as stated in Griffith Miss. Chancery Practice, Section 384, which reads as follows:
"The strict theory of the cross-bill is that it is a dependent of the original bill, in consequence of which formerly it was generally held that a dismissal of the original bill carried with it the cross-bill, but this rule too has been departed from so that now if the cross-bill seeks affirmative relief separately and independently of the original bill — although, of course, growing out of or touching the same subject matter involved in the original bill, as it must — the court will at the insistence of the cross-complainants retain it and proceed with its issues, if the cross-bill and its facts be complete enough within themselves and without the aid of the original bill to make the granting of relief thereon practicable and proper. It is at last a matter within the sound discretion of the court to be wisely exercised towards the advancement of justice between the parties. And not only will the court retain the cross-bill in every case where if the matter had been brought in an original bill it would have retained it, but it should be kept in mind that the advancement of our procedure has developed a definite disfavor towards any practice which tends to turn parties out of court when once they were fairly in, and of sending them away either to transform the pleadings or else to begin the matter over again. Therefore, it is only when the matter of the cross-bill, independently considered, is so clearly of law as to be distinctly a better subject of determination at law, that a cross-bill will be dismissed, or transferred, merely because the original bill has been dismissed."
This statement is in accord with the weight of authority elsewhere, as may be found in 30 C.J.S., Equity, Section 388, pp. 804-806.
Thus it is seen that the cross-bill will be retained where, if the matter therein had been brought in an original bill, it would have been retained, and that in such case it is only when the matters of the cross-bill, independently considered, are so clearly of law as to be distinctly a better subject of determination at law, that a cross-bill will be dismissed merely because the original bill has been dismissed. In other words, where the relief sought by the cross-bill is a matter cognizable at law, dismissal of the original bill carries with it, generally, the cross-bill, and the cross-complainant is relegated to his remedy at law. But here the prayer of the cross-bills sought confirmation of title to land, and hence was equitable, as pointed out further in the succeeding paragraph.
Here, the cross-bills bring forward, with elaboration, the issue of adverse possession, and rely thereon in addition to the title by conveyances, a feature in respect to which no substantial aid is furnished by the original bill, and as to Gulf Refining Company it prays that its title be confirmed in it as against all the original complainants. This right to have an affirmative adjudication in chancery of title to real estate is one conferred by statute, supplementary to the ancient rules in equity on that subject. It is not so clearly of law as to be distinctly a better subject of determination at law, the fact being that, at this day in this State, land-title questions are almost always presented in the chancery court, the action of ejectment having become nearly obsolete in actual practice, and certainly so in cases involving parties as numerous as in the instant case.
It is said, however, that as to Gulf Refining Company, the latter filed no objections to the motion to dismiss and thus did not insist that its cross-bill be retained, to which Gulf Refining Company replies, citing Griffith Chan. Prac., Section 407, that no formal objection or response to such a motion was required, and the burden of proof to support it was on the movant; and further that the record shows that Gulf Refining Company, by its attorney, was present and participated in the hearing wherein the motion to dismiss was resisted.
We are of the opinion, therefore, that the court was correct in not dismissing the cross-bills, and in proceeding to a final hearing on them, without the attendance of cross-defendants, who purposely absented themselves; and, further, that upon the record the court was correct in sustaining the cross-bills on the merits.
This brings us back to the original bill — whether it should have been dismissed, retaining the cross-bills. This, as it seems to us, has now become, as to all practical purposes, a moot question. Under the cross-bills every issue and question, which could have been determined under the original bill, were adjudicated against the original complainants and cross-defendants in favor of cross-complainants and their privies. Thereby the whole matter has now become res adjudicata. Von Zondt v. Town of Braxton, 149 Miss. 461, 465, 115 So. 557; Watkins v. Mississippi State Board, 170 Miss. 26, 32, 154 So. 277. Upon similar principles see also Griffith's Chan. Prac. Sections 263, 363, 571, 624.
In view of the foregoing announcement of our conclusion here, which completely determines the ultimate solution of the problem on the appeal before us, we do not deem it necessary to discuss other points, on both sides, ably argued in the several briefs filed.
The decree of the Chancery Court will, therefore, be and is affirmed.
Affirmed.
This case was submitted to Division B of this Court on March 24, 1947, and was decided by that Division on April 21, 1947 30 So.2d 66. Within the time allowed, a suggestion of error was filed, and at the same time this motion that the case be transferred to be heard on the suggestion of error by the Court in banc. Motions by any of the parties to transfer from a Division to the Court in banc have never heretofore been entertained, and this for obvious reasons. The only methods by which a case in a division may be transferred to the full court are those set forth in the amendment to the Constitution of 1890, now known as Section 149A of the Constitution, Vol. 1, Code 1942, pp. 221, 222, in addition to which a division, upon its own motion, but never on the motion of a party litigant, when the division deems it expedient or proper to do so, may take a case in that division into the Court in banc. These are matters of internal administration by the Court with which parties have no litigious interest, and they will not be heard on the subject either by the Court in banc or by Divisions, or by application to any individual Judge, else the Court might be flooded with motions and applications of that sort.
When one of the Judges of a division is disqualified in a particular case a litigant may suggest to the presiding judge that for that reason, and for that reason alone, it should be transferred to the other division, and this is sometimes allowed, although not as a matter of right.
The Court in banc takes notice of the present motion because, and because only, of the following ground assigned therein, quoting it:
"This Court has been sitting in banc and hearing all cases presented for a number of years prior to the month in which this case was submitted and no minute entry was made by the Court creating divisions as the Court is now constituted, or assigning causes for hearing by divisions."
The only rule adopted by the Court as a rule on this subject is Rule 34, and the only requirement by that rule as to minute entires, so far as the present motion is concerned, is that the assignment of the Judges to the two divisions shall be entered on the minutes, and this has been done as to the several Judges of the Court. In the thirty years of the Court's administration since the adoption of the aforementioned amendment, it has never been deemed necessary to make any entry on the minutes when the Court decided to go into divisions or from divisions to the Court in banc. It was not necessary to do so on March 1st, this year, and we entered no such unnecessary order.
We decided at our in banc conference on Friday, January 31, 1947, to sit in divisions on and after March 1, 1947, and until further notice. The Clerk was officially informed of this decision and on the next day, February 1, 1947, he notified, in writing, all persons having business before the Court in the following language: "The Court this date decided to resume settings in Divisions — A and B — and ordered the following setting of cases to be heard in the month of March, 1947," and this was followed by the lists of cases to be heard by the divisions in that month, and this has been done for each succeeding month.
This was all that was necessary, and the Court has been lawfully sitting in divisions since March 1, 1947. The Court in banc takes notice of no other ground in the said motion, and the notice so taken does not operate to put the case in banc, and it can be taken in banc by no other method than those mentioned in the first two paragraphs of this opinion.
The motion to transfer is overruled.