Opinion
No. 29143.
March 16, 1931. ON MOTION TO STRIKE BILL OF EXCEPTIONS.
APPEAL AND ERROR.
In absence of denial under oath that bill of exceptions prepared by counsel is correct, Supreme Court treats it as though counsel had agreed it was correct (Code 1930, sections 589, 729; Code 1906, section 797).
ON THE MERITS. (Division A. Nov. 2, 1931.) [137 So. 479. No. 29142.]1. EQUITY. Language of decree held to show that demurrer was sustained on account of multifariousness ( Code 1930, section 396).
The applicable part of the decree provided, in substance, that it was decreed that demurrers were thereby sustained and that the bill was dismissed as to each of the defendants, without prejudice to such rights as the complainant might have to institute separate bills against defendants, but that defendants should be required to plead to such bills as might be filed by complainant within thirty days from date of filing thereof, without process, as of the December term of court.
2. EQUITY.
Effect of filing new bill after demurrer was sustained on ground of multifariousness was to recast suit and not to terminate it (Code 1930, section 396).
3. LIMITATION OF ACTIONS. Where filing of separate bill, December 24, 1926, after demurrer was sustained was continuation of old suit filed before January 1, 1926, which statute authorized revenue agent to carry on, three-year statute did not bar or abate action of revenue agent against county supervisors selling bonds for less than face value ( Laws 1926, chapter 286; Code 1930, sections 6996).
Laws 1926, chapter 286, abolishing office of revenue agent and creating office of state tax collector, in section 3 thereof, provided that revenue agent should carry on to conclusion all suits then pending brought before January 1, 1926, that were not expressly abated by statute. The first section validated sales of bonds sold and paid for before January 1, 1926, and section 2 abated all suits brought subsequent to January 1, 1926.
4. ELECTION OF REMEDIES.
Prosecuting to unsuccessful termination of suit against bank, held not election of remedies, releasing county supervisors in action based on conspiracy between bank and supervisors, whereby bond issues were sold to bank for less than face value.
5. ELECTION OF REMEDIES.
Doctrine of election of remedies applies only where party, having elected to pursue one of two inconsistent remedies open for assertion of right arising from same state of facts, is estopped from afterwards pursuing the other.
6. TORTS.
Joint tort-feasors are both jointly and severally liable and may be proceeded against either singly, jointly, or individually, or all combined.
7. TORTS.
Where two or more owe another joint duty, and by common neglect of such duty such other person is injured, there is "joint tort" with "joint liability."
APPEAL from chancery court of Sunflower county; HON.C.M. MURPHY, Special Chancellor.
B.B. Allen, of Indianola, and J.H. Sumrall, of Jackson, for appellant.
When the stenographer refused to transcribe notes and the trial judge refused to sign the bill of exceptions, and the opposing counsel also refused to inspect it, an attorney can then complete list of exceptions by his affidavit.
Section 729, Code of 1930.
No notes or record gotten up as provided by law shall be stricken from record in this court, "for any reason, unless it be shown that such notes are incorrect in some material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on by the parties, nor becomes a part of the record as provided by law."
Sec. 729, Code 1930.
When the amended bill was filed in this case it was a continuation of the original suit.
But when there is a supplemental bill, the original and the supplement thereto are treated as one pleading, although a demurrer may go to the supplement alone, just as it may to a part of a bill.
Sec. 308, Griffith's Chancery Practice.
Broadly speaking an election of remedies is the choice by a party to an action of one or two or more coexisting remedial rights, where several such rights arise out of the same facts; but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other. Thus in its technical and more restricted sense, election of remedies is the adoption of one of two or more coexisting remedies with the effect of precluding a resort to the other.
20 C.J. page 1.
Where actions against different persons are consistent and concurrent, the doctrine of election does not apply and the prosecution of one does not bar the prosecution of the other; and an unsuccessful attempt to recover against one, in the absence of circumstances creating an equitable estoppel, will not bar an action against the other. A party may pursue any number of consistent and concurrent remedies against different persons, until he has obtained satisfaction from some of them.
20 C.J., page 8.
To make them inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demand which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.
20 C.J. page 11.
But where the action against the different persons are not inconsistent, the doctrine of election of remedies has no application, and the remedies against all persons liable may be pursued until satisfaction is obtained. So, the prosecution of a misconceived and unmaintainable action or defense against one person does not preclude an inconsistent action against another.
20 C.J., p. 17.
Joint tort-feasors are both jointly and severally liable and may be proceeded against either singly, jointly or individually or all combined.
Bailey v. Delta El. Lt. Co., 86 Miss. 634, 38 So. 354.
Where two or more owe another a common duty, and by a common neglect of that duty such other person is injured, then there is joint tort with joint liability.
Nelson v. I.C.R.R. Co., 53 So. 619.
The doctrine of election of remedies applies only where a party, having elected to pursue one of two inconsistent remedies open for the assertion of a right arising from the same state of facts, is estopped from afterwards pursuing the other.
A grantor in a deed of trust sought to recover the land conveyed by the deed, and alleged that the sale under the deed was void. Held, that the grantor did not elect to pursue one remedy to the exclusion of the other.
Watson v. Perkins, 88 Miss. 64, 40 So. 643.
Section 2314 of the Code of 1930 provides that after a suit has been dismissed, the bar of the statute of limitations does not run in the interval of the filing of a new suit, provided such suit be instituted within one year from the date of such dismissal.
Section 2314 of the Code of 1930; Cossar v. Grenada Oil Mill, 138 Miss. 892, 103 So. 509; Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8.
Chapter 286, Laws 1926, does not take away from the appellant the power to prosecute the suit in question.
Miller v. Hay, 109 So. 16; Miller v. Davis, 109 So. 721; Miller v. Johnston, 109 So. 715; Globe Rutgers v. Miller, 108 So. 180.
J.L. Williams and Frank Everett, both of Indianola, and Wm. M. Hall, of Memphis, Tenn., for appellees.
Bills of exception may be taken in the chancery court when signed by the chancellor and become a part of the record when the matters embraced therein would not be a part of the record otherwise.
Section 401, Code 1930.
A method of perfecting a record is provided where the stenographer dies or resigns or fails to transcribe his notes and also in the event of death or incapacity of the judge or his refusal to sign the transcribed notes then the same can be presented on appeal by an affidavit of the attorneys.
Sec. 729, Code of 1930.
An appeal is not a matter of right under the common law, but is purely a statutory right, and being statutory the statutes must be substantially followed.
The purported bill of exceptions does not affirmatively show, as is required by statute, that the same was ever presented to the chancellor for his signature and cannot be made a part of this record by the affidavit of only one counsel representing appellant as was undertaken.
Pittman v. State, 124 So. 761.
This court must assume that the trial judge refused to sign the special bill of exceptions in this cause for the reason that he conceived that it did not fairly state the facts.
Pittman v. State, 124 So. 761.
The legislature has attempted to provide a method of supplying a bill of exceptions under all contingencies, and particularly in case of the death or default of the stenographer who took the notes of the evidence. An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant who has secured a judgment or decree in his favor, the party desiring to appeal therefrom must pursue the method and remedy provided by statute.
McClanahan v. O'Donnell, 114 So. 336.
The only effect of the words "without prejudice" in the order by which the first suit was dismissed is to prevent the dismissal of that suit in operating as a bar to any new suit which plaintiff might therefore desire to bring on the same cause of action.
24 Cyc. 894; Cole v. Fagan, 108 Miss. 100, 66 So. 400.
The dismissal of a suit without prejudice does not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the complainant (plaintiff) and hence it will not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending.
Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609; W.T. Raleigh Co. v. Barnes, 143 Miss. 600, 109 So. 8; Nebitt v. Bacon, 32 Miss. 212.
When a party has two inconsistent remedies available to him and he chooses to pursue one, then he is bound by this election and cannot proceed on the others.
Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 A.L.R. (N.S.) 786, 17 Ann. Cas. 611; Quitman County v. Gore, 117 So. 262; Hatley Mfg. Co. v. Smith, 123 So. 887.
When this suit was filed on the 24th day of December, 1926, it was barred by chapter 286 of the Laws of 1926.
The statute validated and confirmed all acts, proceedings, orders and resolutions of boards of supervisors in the matter of the sale of county bonds and road district bonds, and the price received therefor in all cases where such bonds were sold and the consideration therefor paid more than three years prior to January 1, 1926. And it abated all suits brought subsequent to January 1, 1926, to recover any monies on account of the sales of such bonds or the price paid therefor.
Secs. 1, 2, Chapter 282, Laws of 1926.
Section 3 of Chapter 286, the Laws of 1926, withdraws from the revenue agent the power to prosecute any suit abated by the acts of 1926 of the legislature.
Miller v. Globe-Rutgers Fire Insurance Co., 108 So. 180; Johnson v. Reeves, 72 So. 925, 112 Miss. 227.
Argued orally by B.B. Allen, for appellant, and by Frank E. Everett, for appellee.
ON THE MOTION.
This case was tried in vacation by a special chancellor. The official stenographer was duly notified to file a transcript of the evidence, but failed so to do; and, within the time allowed therefor by paragraph d, section 1, c. 145, Laws 1920, Hemingway's Code 1927, section 599, which now appears as section 729, Code of 1930, counsel for the appellant presented to the chancellor a bill of exceptions setting forth his conception of the evidence introduced and rulings made at the trial. The chancellor declined to sign the bill of exceptions, and counsel then attached thereto his affidavit to the correctness thereof and filed it with the clerk of the court below.
A motion has been filed by counsel for the appellee to strike this bill of exceptions from the record. On the failure of the stenographer to file a transcript of the evidence a bill of exceptions may be prepared, under the statute hereinbefore referred to, "as in cases where no stenographer takes down the evidence," and, in event of the refusal of the trial judge to sign such bill of exceptions, it can be made a part of the record by the attorney who represented the party taking the appeal making affidavit to the correctness thereof, "and proceedings shall be taken thereon similar to those provided in preceding section for cases in which the judge should be prevented from signing the bill of exceptions." Code 1906, section 797. The "preceding section" is section 796, Code 1906, Hemingway's Code 1927, section 594, which now appears as section 589, Code 1930, under which such a bill of exceptions will be accepted by this court unless and until error therein is pointed out by counsel for the appellee in the manner provided by the statute.
In the absence of a denial under oath that the bill of exceptions is correct, we treat same as though it had been agreed to be correct by counsel. This record is not so challenged, and therefore the question of whether or not it is correct is not here presented for decision.
The motion will be overruled.
ON THE MERITS.
On November 5, 1925, W.J. Miller, state revenue agent, appellant here, filed his bill against certain members of the board of supervisors of Sunflower county, the sureties on their bonds, the Bank of Commerce Trust Company of Memphis, Tenn., and several other defendants, on several independent disconnected causes of action based upon unlawful and alleged fraudulent allowances by the board of supervisors; the several transactions accruing in the year 1920. A demurrer of all the defendants was sustained thereto on December 20, 1926. Although containing several grounds, the demurrer was evidently sustained on the ground that the bill was multifarious. The order of the court will be more fully considered in connection with a discussion of the law of the case.
Four days later, a separate bill was filed by the complainant against said members of the board of supervisors, the sureties on their bonds, and said Bank of Commerce Trust Company. The separate bill sought to reform the bonds of the officers alleging that they fraudulently executed bonds for six thousand dollars when the statute required bonds in excess of twenty-six thousand dollars. The bill further alleged that, because of a fraudulent arrangement between the Bank of Commerce Trust Company and the board of supervisors, issues of bonds were sold for less than their face value, and by which sales there was a loss to the county of thirty-four thousand dollars.
Subsequently, all parties defendant filed a demurrer to the separate bill upon the same grounds as alleged in the demurrer to the original bill, omitting the ground of multifariousness. The demurrer of the Bank of Commerce Trust Company was sustained. The complainant declined to amend his bill, and the bill was finally dismissed as to the bank. Complainant Miller was then granted an appeal. The defendants whose demurrer was overruled were allowed time within which to file answer. Subsequently the defendants filed an answer denying all fraud alleged in the original bill as to the sale of the bonds, and denied the legal implications deduced by the complainant from certain allegations of fact, and, by leave of the court, an amendment was finally filed, in which certain pleas were made a part of the answer of all defendants. There was a plea in bar of the suit because of the statute of limitations of three years next before December 24, 1926, as found in chapter 286 of the Laws of 1926. There was also a plea that because the complainant had elected to proceed against the Bank of Commerce Trust Company and the pleading defendants, and had prosecuted to final judgment the cause of action against the bank, that therefore the complainant, having elected to proceed against the bank, had thereby elected to pursue an inconsistent remedy, and that under the doctrine of election of remedies the suit was barred. There was also a plea to the effect that the cause of action had been abated by an act of the Legislature.
The defendants made a final motion that the plea filed be taken up and disposed of by the court, separate and apart from the answer. The record shows that the complainant joined issue on the pleas by the simple statement, "issue joined in short." The defendants offered no evidence in support of their pleas, but the complainant offered in his evidence the record consisting of the pleadings and orders of the court theretofore made.
On November 25, 1929, the record shows that the plea of all the defendants was adjudged by the court to be sufficient both in law and in fact and was sustained, and the original bill was dismissed. A motion was promptly made to vacate the last-named decree, which, on May 22, 1930, was overruled by the court, and appeal is prosecuted here.
It has been most difficult to determine from the record the action of the court below, because of the unusual arrangement thereof, but we think we have set forth above a fair resume of the record in its salient features.
Counsel for appellant insist that the court sustained the plea of election of remedies and overruled the other pleas. This is not specifically denied by counsel for appellees, and we cannot determine from the record which of the three pleas was sustained by the court, so that we shall consider the three pleas, being of the opinion that the decree of the court would be upheld if this court should determine either of the three pleas was sufficient either in law or in fact.
First. The plea in bar because of the statute of limitations. This plea is based upon chapter 286, p. 401 of the Laws of 1926, section 6996, Code of 1930, which is in this language: "The state tax collector shall bring all suits authorized by this act within three years after the cause of action accrues and not thereafter." Chapter 286 sought to abolish the office of revenue agent and to create the office of state tax collector, and fix the duties and powers of said latter office; said act being approved March 12, 1926. In connection therewith, the last paragraph of section 3 of said act invested the then revenue agent with all the powers vested in the new state tax collector, until the latter office was filled by the election to be held in November, 1927, and further specifically provided as follows: "And shall have the authority to carry on to a conclusion all suits now pending but brought prior to January 1, 1926, in the name of the revenue agent that are not expressly abated by statute," etc.
We think it proper in this connection to refer to chapter 282 of the Laws of 1926, which, in its first section, validated as to the matter of sale all county and road district bonds and the price received therefor, and the payment of fiscal agents to sell such bonds, as to all such bonds sold and paid for for more than three years prior to January 1, 1926. Section 2 abated all suits brought subsequent to January 1, 1926.
The sharp contention of counsel for appellees is that when the court below entered its order of December 20, 1926, sustaining the demurrer and dismissing the bill filed November 25, 1925, the litigation terminated, and that the separate bill filed herein four days later became and was a new suit, and therefore the suit was both barred and abated by the legislative acts to which we have referred. It is necessary for us to consider the order of December 20, 1926, the applicable part of which is in these words: "It is therefore ordered, adjudged and decreed that the said demurrers be, and each of them is hereby sustained, and the said bill dismissed as to each of the said defendants, without prejudice to such rights as the complainant may have to institute separate bills against the defendants; but the said defendants shall be required to plead to such bills as may be filed by the complainant within thirty days from the date of filing thereof, without process, as of the December 1926 term of this court."
The language quoted from the decree or order of the court, we think, is a substantial compliance with section 396 of the Code of 1930 as to multifariousness. The decree is inartificially drawn, but we think that the language thereof makes it reasonably clear that the demurrer was sustained on account of multifariousness; that the complainant was allowed to file separate bills, and that the several defendants were required to answer without process as of that term of the court. The record shows that they did so answer, and, while the order does say in term that the bill should be dismissed, it is qualified by the words, "without prejudice to such rights as the complainant may have to institute separate bills." We are further persuaded to adopt this view because the court subsequently overruled the same demurrer omitting the charge of multifariousness as to all the defendants in the separate amended bill, except the Bank of Commerce Trust Company. The cause of action arose in 1920, but there is no contention that it was barred by any statute when the original bill was filed. We have quoted from section 3, chapter 286 of the Laws of 1926, which authorizes the revenue agent to carry on and conclude suits pending and brought before January 1, 1926; a distinct reservation, as we view the act, to the revenue agent of his right to continue this suit. The contention that the filing of the separate bill, under the order which we have quoted, began a new suit, is without merit. The separate bill in this case is not a new suit. The effect of filing the new bill, after demurrer had been sustained on the ground of multifariousness, is to recast the suit, and not to terminate it. See Griffith Chancery Practice, section 207, which we quote: "And as has already been seen the effect of the objection if sustained is not to dismiss the bill but to require it to be recast and its several matters properly separated." See, also, Robertson v. Monroe County, 118 Miss. 546, 79 So. 187.
We are therefore of the opinion that the so-called three-year statute of limitations has no application to the instant case, and therefore that plea cannot be sustained either in law or in fact.
Second. Do the statutes which we have quoted with reference to the statute of limitations plea abate the action? It will be noted that the revenue agent was empowered to carry on and conclude suits pending and brought before January 1, 1926. We have already decided that the filing of a separate bill on December 24, 1926, was not a new suit, but was a continuation of the old suit filed prior to January 1, 1926, so that what we have said with reference to the statute of limitations is equally applicable to the plea that the Legislature abated it, which renders it unnecessary for us here to decide the very serious question arising on the threshold of this case as to whether the Legislature has the power to abate an action pending in the courts of the land.
Third. Appellees contend that the filing and prosecuting to an unsuccessful termination of the suit on the same cause of action against the Bank of Commerce Trust Company was an election of remedies which releases the defendants, who were required to answer when the bank escaped liability by the decree of the court sustaining its demurrer and dismissing the bill as to it.
The bill charges, in substance, that the Bank of Commerce Trust Company, the purchaser of bonds, and the board of supervisors in 1920, entered into a conspiracy by which the bank bought, and the members of the board of supervisors sold, bond issues of certain road districts of that county for thirty-four thousand dollars less than their face value — par and accrued interest. It charges that this arrangement was a conspiracy and a fraud on the part of the members of the board of supervisors and on the part of the bank, and sets forth orders of the board of supervisors which the revenue agent alleges prove his contention. Be that as it may, the bill charges a joint liability by which the county, through the revenue agent, had a right to sue either or both for the alleged wrongful fraudulent act. We are unable to perceive how the doctrine of election can be invoked in such a case, because, forsooth, the bank escaped liability perhaps for the reason that no appeal was prosecuted from the decree in its favor, and the decree became final. If this bill charges anything with clarity, it does charge that there was concerted action and joint fraud of the bank and board of supervisors; it is inescapable.
The doctrine of election of remedies applies only where a party, having elected to pursue one of two inconsistent remedies open for the assertion of a right arising from the same state of facts, is estopped from afterwards pursuing the other. 20 C.J. 1.
Where the seller of land sought to recover land conveyed by her from her creditors alleging that her deed was void, and also alleging that she was entitled to the land, whether the deed was void or not, by the doctrine of subrogation, it was held that the pursuing of the one right was not an election as to the other. Watson v. Perkins, 88 Miss. 64, 40 So. 643.
Joint tort-feasors are both jointly and severally liable, and may be proceeded against either singly, jointly, or individually, or all combined. See Bailey v. Delta Elec. Light Co., 86 Miss. 634, 38 So. 354.
Where two or more owe another a joint duty, and by a common neglect of that duty such other person is injured, then there is joint tort with joint liability. Nelson v. I.C.R.R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689.
It is stated by counsel that the court below applied the doctrine of election of remedies in this case under the authority of Quitman County v. Miller, 150 Miss. 841, 117 So. 262. An examination of that case reveals to us that it has no application to the case at bar, save that the rule there announced is applied here. In that case, the revenue agent brought a suit against Gore for money borrowed from funds of the county, alleging that the loan was unlawful, and, while that suit was pending, Gore paid the money into the county treasury without paying the revenue agent his commission. It was held that the revenue agent had a right to sue the borrower, Gore, for his commission, or he might, in the alternative, sue the county, and, in this state of the case, if the revenue agent elects to sue Gore, the borrower, and prosecutes the suit to judgment, he, the revenue agent, is bound by the election so made, and cannot thereafter sue the county for the commission. The court there distinctly held that there was no joint liability of the county and Gore, that the liability was that of either, but not both, and that therefore there were two inconsistent remedies available. Miller was held bound by his election. In the Gore Case there was no joint liability. In this case, joint liability and joint action of fraud and joint duty to the county is shown by the complainant. In such case, there is no election of remedies where one such defendant escapes liability to the end that the other defendants are released thereby. This case should be tried on its facts, which we have studiously avoided taking up in detail. None of the pleas should have been sustained by the court, but they should have been overruled, and the issue of fact tried by the court.
Reversed and remanded.