Opinion
No. 35937.
November 12, 1945.
1. APPEAL AND ERROR.
Although defendant did not make affidavit of defense and file plea within time, denial of judgment by default and permitting defendant to file affidavit and plea did not require reversal, where no harm was done to plaintiff by granting defendant a trial on the merits.
2. APPEAL AND ERROR.
In passing on a ruling of a lower court, the Supreme Court will look to the whole record, and, if in light thereof no harm appears to have resulted to appellant from ruling complained of, judgment will be affirmed though the ruling may have been erroneous when made.
3. PRINCIPAL AND AGENT.
In action for damages for removal of timber, where declaration was based on theory of principal and agent relationship between defendant and individual who removed timber, burden of proof rested on plaintiff.
4. PRINCIPAL AND AGENT. Trespass.
Where declaration for damages for removal of timber was drawn on theory that principal and agent relationship existed between defendant and individual who removed timber, but no proof was produced establishing authority of alleged agent, or that defendant participated in alleged wrong or derived any benefit therefrom, plaintiff's evidence was properly excluded and verdict was properly directed for defendant.
5. PUBLIC LANDS.
Where lessee of school land executed lease to another whose administrator transferred lease to assignee subject to condition that nonpayment of rent would cancel lease, result of transaction was that everything original lessee had by his own lease, subject to defeasance on contingent subsequent condition of nonpayment of rent, became property of assignee, and all that remained in original lessee was right of reentry on condition broken.
6. PUBLIC LANDS.
Where lessee of school land executed lease to another whose administrator made an assignment under which assignee was conveyed everything that original lessee owned, subject to cancellation on nonpayment of rent, original lessee had no right in the timber as estovers for which he could claim damages against the assignee.
APPEAL from the circuit court of Wilkinson County; HON. GERARD H. BRANDON, Special Judge.
Clay B. Tucker, of Woodville, for appellant.
The appellee had the opportunity to make his affidavit of a good and substantial defense to the said suit and having failed to do so the appellant was entitled to a final judgment and a writ of inquiry to assess his damages in this case.
Code of 1942, Sec. 1491.
The affidavit of substantial defense in this case is in general terms and are simply conclusions of the pleader, and does not meet the requirements of Section 1491, Code of 1942, and the motion of appellant to strike this affidavit should have been granted by the court.
Lewis v. Myer, 116 Miss. 454, 460, 77 So. 297; Mayor and Aldermen of City of Vicksburg v. Crichlow, 196 Miss. 259, 16 So.2d 749.
The appellee here filed a Special Plea No. 2 as follows: "Plaintiff has no property, right or title to the trees and timber sued for shown by the declaration and exhibits and as shown thereby Wilkinson County, Mississippi, is the owner thereof for the use and benefit of the Sixteenth Section School Funds for Township 2 North, Range 1 West, and is the only party who can bring or maintain the action set forth in the declaration." To this plea the appellant demurred on the grounds that this plea was simply a denial of title in the appellant based on conclusions of the appellee and shows no legal title in anyone else. This plea ignores the well settled rule in this state that where sixteenth section land is subject to a ninety-nine year agricultural lease, timber could not be sold by the board of supervisors except to, or with the consent of, the lessee.
State ex rel. Attorney General v. Dunnam et al. (Miss.), 67 So. 461; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3; Lewis v. Myer, supra; Hood v. Foster, 194 Miss. 812, 13 So.2d 652.
I submit that Plea No. 2 is not good in law and that the demurrer of appellant thereto should have been sustained.
Lewis v. Myer, supra.
Appellee filed a notice under the general issue stating that he would offer evidence to prove and establish that appellant had no property or title to the property described in the declaration and the same is owned and possessed by Wilkinson County, Mississippi, for the use and benefit of the school fund thereof; that W.B. Walker purchased from said county the timber and trees set forth in the declaration and paid $125 into the school fund thereof for Township 2 North, Range 1 West, which payment has been received and accepted by said county and school funds, and that he was not the servant or agent of defendant. The appellant filed a motion to strike this notice under the general issue as the said notice does not state the minute book and page of the minutes of the board of supervisors wherein said timber was advertised for sale by the said board as required by Section 2925, Code of 1942, in the sale of any property exceeding the value of $100. And the said notice does not state the minute book and page of the board of supervisors wherein the board of supervisors authorized the sale of said timber to one W.B. Walker as appellee would be required to do in any legal sale of said timber by the board of supervisors to anyone, and further the said notice under the general issue only gives notice of an illegal sale and purchase of the timber from Wilkinson County, Mississippi, and does not state that this sale was made with the consent of the appellant, the owner of the ninety-nine year agricultural lease on said land. Such a plea was insufficient in law and presented no defense. The lower court overruled the motion of appellant to strike this notice under the general issue and I submit that this order of the court in overruling the motion was error, because the appellant would not have been permitted to prove any sale of the said timber by the board of supervisors unless he could have shown by the minutes the contract under which said timber was sold and that timber was sold with the consent of appellant.
Lewis v. Myer, supra.
The status of the relationship between Sessions and W.B. Walker was a jury question.
The owner of a ninety-nine year agricultural lease of sixteenth section land can sue and recover for his own benefit the value of timber wrongfully cut and removed from said land by a third party without his consent and against his wishes.
Fernwood Lumber Co. v. Rowley et al., supra; Lewis v. Myer, supra; Hood v. Foster, supra.
Henley, Jones Woodliff, of Jackson, for appellee.
The court correctly permitted the defendant to file an affidavit of a meritorious defense and pleas in this cause.
Southwestern Surety Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143; Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440.
The appellee was not guilty of a trespass and did not participate therein and, therefore, would not be liable therefor.
Seward v. West, 168 Miss. 376, 150 So. 364; Gilmore-Puckett Lumber Co. v. Bank of Tupelo, 177 Miss. 152, 170 So. 682.
Walker was not acting as Sessions' agent or servant in cutting and removing the timber.
Dahnke-Walker Milling Co. v. T.J. Phillips Sons, 117 Miss. 204, 78 So. 6; Gulfport Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; New Home Sewing Machine Co. v. Moody, 189 Miss. 628, 198 So. 550; Martin Bros. v. Murphree et al., 132 Miss. 509, 96 So. 691; Gabbert et al. v. Treadway, 194 Miss. 435, 13 So.2d 157; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Tarver v. J.W. Sanders Cotton Mill, 187 Miss. 111, 192 So. 17; Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Cape County Savings Bank et al. v. Gwin Lewis Grocery Co. et al., 123 Miss. 443, 86 So. 275; 3 C.J.S. 187, 189, Sec. 256.
Appellant as lessee of sixteenth section land had no such title to the timber as to enable him to recover for the value thereof.
Jones v. Madison County, 72 Miss. 777, 804, 18 So. 87; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; Board of Sup'rs of Warren County v. Gans, 80 Miss. 76, 31 So. 539; Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3; Caston v. Pine Lumber Co., 110 Miss. 165, 69 So. 668; Moss Point Lumber Co. v. Board of Sup'rs of Harrison County, 89 Miss. 448, 42 So. 290, 873; Jefferson Davis County v. Simrall Lumber Co., 94 Miss. 530, 49 So. 611; J.T. Fargason Son, Inc., v. Coahoma County, 156 Miss. 419, 124 So. 758; Hood v. Foster, 194 Miss. 812, 13 So.2d 652.
Whatever rights appellant had in the timber were assigned to the appellee.
Ware v. Washington, 6 Smedes M. (14 Miss.) 737; Montgomery v. Dillingham, 3 Smedes M. (11 Miss.) 647; 32 Am. Jur. 204.
Appellant's damages would be highly speculative and uncertain.
Vicksburg M.R. Co. v. Ragsdale, 46 Miss. 458; Mississippi Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Anderson-Clayton Co. v. Rayborn (Miss.), 192 So. 28; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Mutual Benefit Health Accident Ass'n v. Johnson (Miss.), 186 So. 297; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625.
Argued orally by Clay B. Tucker, for appellant, and by W.S. Henley, for appellee.
Appellant sued appellee in the Circuit Court of Wilkinson County for damages, claiming to be the legal owner, on January 1, 1938, of certain sixteenth section land in said county, and to have leased the same on said date to Wash Owens. The lease stipulated in part:
"Wash Owens agrees to lease said land from August Metzger for said person as The School Lease in said land lasts, no sale of timber, only for fixing houses and fences, must be taken. Wash Owens agrees to pay in advance $50.00 Fifty Dollars per year, as long as lease is in force. January the first 1938 will be first payment on lease, and thereafter every first of Jany.
"August Metzger assumes no responsibility of any kind, for fixing fence, or repairing houses, of any kind. This lease is only binding between August Metzger and Wash Owens and can not be subleased to any one else, except by agreement. Any failure to pay rent as stipulated is an act of terminating said lease."
The said Owens died subsequently and, by agreement with appellant, his administrator transferred and assigned to appellee, the lease aforesaid, appellee assuming "all responsibility for the payment of rent and other obligations of Wash Owens."
The declaration charges that on or about August 1, 1943, appellee put a man named W.B. Walker in charge of said land as "his servant or agent, or having sublet the said land to the said W.B. Walker, without the consent or agreement of plaintiff, contrary to the terms of his said lease, the said W.B. Walker by and under the authority and without the authority and without the consent and knowledge of plaintiff, the legal owner of the estovers in the timber on said land, did wilfully and unlawfully cut, remove, deaden and destroy the timber on said land, the property of plaintiff as alleged, in the sum of and to the value of" $600.
A demurrer was interposed to the declaration and overruled, and appellee granted ninety days in which to make affidavit of defense and file pleas. This he did not do within the time allowed. The next term of circuit court convened in March, 1945. In January, 1945, plaintiff filed a motion for final judgment and a writ of inquiry to assess the damages, as of the March term, 1945. The regular circuit judge recused himself, and a member of the Bar, by agreement, tried the case. At the March term before action was had on appellant's motion, supra, appellee moved the court for leave to file an affidavit of merits, and his pleas. His defense would be that he was not guilty of cutting or selling any of the trees or timber, either personally or through any agent or servant authorized; that W.B. Walker was not his agent or servant, and was not authorized by him to cut or remove any of the timber, and that the property sued for was owned by the Wilkinson County for the benefit of sixteenth section school funds. His excuse for not filing earlier was that the firm of lawyers originally representing him had to be replaced by his present counsel, because one member thereof had been so ill he was then, as he had been since, unable to serve; and that the other member of the firm was compelled by the exigencies of business to be away from Woodville, due to certain emergencies, so that inadvertently the filing of affidavit and pleas was overlooked by him. It was represented to the court, however, that no disadvantage to appellant or delay in the trial of the case would ensue, and that appellee was then and there ready to proceed with the trial.
Motion was made by appellant to strike the motion, which was overruled, and appellee was permitted to file the affidavit and pleas. Appellee filed a plea of the general issue, and notice thereunder, that appellant was not the owner and Walker had bought the timber from Wilkinson County, and two special pleas. Special plea No. 1 was that there was a nonjoinder in that Wilkinson County was a necessary plaintiff; and by special plea No. 2 he set up the defense of nonownership in plaintiff and claimed that Wilkinson County was the owner for use of sixteenth section school funds, and hence it alone could maintain the suit. The appellant demurred to both special pleas, and was sustained as to No. 1, and overruled as to No. 2. Appellant also moved to strike the affidavit of meritorious defense, and the notice under the general issue. The trial court overruled all the motions to strike, and appellant filed a traverse of the notice under the plea of the general issue.
We are of the opinion that the trial court was correct in his rulings against appellant's motions and demurrers, but since we think his action in sustaining appellee's motion to exclude appellant's evidence was correct, for reasons hereinafter to be given, it is not here necessary for us to discuss any of the other assignments of error based on the foregoing proceedings, except whether or not the trial court was in error when appellant was denied a judgment by default and a writ of inquiry, and appellee was permitted to file his affidavit and pleas.
In the early case of Yost v. Alderson, 58 Miss. 40, 47, it was argued that mere inattention and forgetfulness cannot be a valid excuse for a failure to discharge a legal duty. The court said that this might be true when such inattention or forgetfulness had occasioned a failure which had been injurious to the opposite party. It was said: "The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of justice, not shackles to bind courts to the perpetration of wrong. When their nonobservance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause (Italics ours), the fault should be corrected, and the authority of the court maintained rather by the imposition of costs and the use of other disciplinary agencies than by depriving parties of the opportunity of a fair trial, to secure which such rules are instituted."
An interesting case practically to the same effect is Southwestern Surety Ins. Company v. Treadway, 113 Miss. 189, 74 So. 143, wherein defendant's attorney overlooked or forgot, owing to press of business, to appear on the day of trial, but on receipt of telegraphic instructions appellant's local attorneys appeared and were ready for trial so that no delay was imposed on plaintiff. The trial court refused to set aside a default judgment rendered a few hours earlier on the same day affidavit and motion were filed by defendant. This Court reversed the judgment for trial on the merits.
Subsequent events in the progress of the trial demonstrated that no harm was done appellant by granting appellee a trial on the merits herein. This view brings into operation our announcement in Planters' Lumber Company v. Sibley, 130 Miss. 26, 93 So. 440, 441: "The rule is that in passing on a ruling of a lower court this court will look to the whole record, and, if in the light thereof no harm appears to have resulted to the appellant from the ruling complained of, the judgment will be affirmed, though the ruling may have been erroneous when made. Hemingway v. State, 68 Miss. 371, 8 So. 317."
The court below, on motion of appellee, excluded the evidence of appellant, plaintiff below, at its conclusion and directed a verdict for appellee, defendant below, and we are of the opinion that the court was right in so doing. It will be observed that the declaration in this case is drawn on the theory of principal and agent, and on such declaration and evidence in the case, the appellant, as plaintiff below, on whom the burden of proof rested, was not entitled to recover on appellant's own theory of his case in that no proof was produced establishing the authority of appellee's alleged agent in the sale of the timber on the lands involved, or that appellee participated in the same in any way or derived any benefit therefrom. Therefore, in reviewing the trial on the declaration as filed and the proof adduced, no verdict in favor of appellant could have been permitted to stand. But, since in our judgment appellant misconceived the field of jurisprudence involved, we are constrained not to rest our final decision alone on what we have said supra, and we prefer to point out that the resulting situation following appellant's lease to Owens and the later transfer thereof to Sessions, subject to the condition that nonpayment of the rent would cancel the lease conveyed to appellant, was that everything appellant had by his own lease, subject to defeasance upon the contingent subsequent condition of the nonpayment of rent, became the property of appellee. All that remained in appellant thereafter was the right of entry upon condition broken, and there is no claim of condition broken here. Memphis Charleston R. Company v. Neighbors et ux., 51 Miss. 412.
This lease obtained by appellee would have created between him and appellant a mere relation of landlord and tenant, being of no greater dignity than a lease for one year, had it been subleased instead of assigned. Pace, et al. v. State, ex rel. Rice, Attorney General, et al., 191 Miss. 780, 4 So.2d 270. However, since appellee was conveyed everything that appellant owned as to this lease in the land involved subject to cancellation upon nonpayment of rent, which contingency is not shown to have occurred, we are of the opinion he had no rights in the timber as estovers for which he could claim damages against appellee.
In accordance with this view, it would make no difference in the result if it be conceded that appellee put his servant Walker in possession of the premises, as he became thereby bound to see that such servant or agent did no injury to the estovers. Section 782, Landlord and Tenant, 32 Am. Jur. 669. It would conceivably lead to a different aspect of the situation had appellee, before the filing of the suit, failed to perform the condition subsequent which would have resulted in a breach of condition, followed by a right of reentry in appellant. Section 83, Estates, 19 Am. Jur. 546. Since nothing like this was shown, or even claimed to have occurred, the appellant, as plaintiff below, had no right of action in our judgment against appellee, as defendant below, and the exclusion of the evidence offered by the plaintiff at its conclusion and direction of a verdict for the defendant was proper.
Since we see no reversible error in the trial of this case, the same is affirmed.
Affirmed.
PARTIALLY DISSENTING OPINION.
While there is a conflict in the authorities as to whether a contract by a lessee with another transferring to him the unexpired portion of his term reserving rent thereon with the power of re-entry for the nonpayment of the rent, is an assignment of the term or a subleasing of the property, 32 Am. Jur., Landlord and Tenant, section 317, this Court has aligned itself with those courts which hold that such a contract is a sublease. Senter v. Propst, 190 Miss. 190, at page 204, 197 So. 100, at page 102. Consequently, the opinion and judgment just rendered are erroneous insofar as they are based on the holding that this contract constituted an assignment and not a sublease.