Summary
In Shackelford v. New York Underwriters Ins. Co., 189 Miss. 396, 198 So. 31, it was held that a suit in circuit court was begun when the declaration was filed and summons was issued by the clerk, though the summons was void because it was not issued under the seal of the court.
Summary of this case from Smith Enterprise Co., Inc. v. LucasOpinion
No. 34238.
October 7, 1940.
1. EQUITY.
A motion to strike a ground of demurrer is unknown to the practice in Mississippi.
2. ACTION.
Under statute relating to the commencement of an action in circuit court, the chancery court practice of making the filing of the declaration or bill of complaint the beginning of a suit if process was issued thereon is intended to be adopted for the circuit court (Code 1930, secs. 474, 520).
3. ACTION. Process.
Under statute providing that action in circuit court shall be commenced by filing of declaration, clerk of court must issue process immediately if process is not directed to be held up by party filing it, and the plaintiff will not be deprived of the benefits of filing because of any default or neglect of the clerk unless such default or neglect is attributable to plaintiff (Code 1930, sec. 520).
4. ABATEMENT AND REVIVAL.
Suit on fire policy was begun when plaintiff filed declaration in circuit court, notwithstanding clerk of court omitted to place court's seal on process and properly sealed process was not served on defendant until after defendant had commenced suit in chancery court to cancel the policy, and defendant's plea in abatement on ground a prior action was pending in chancery court could not be sustained, especially where defendant had actual knowledge of the filing of the suit in circuit court and of clerk's mistake or error, and all matters involved in chancery suit were assertable in plaintiff's suit in circuit court (Code 1930, sec. 520).
5. CLERKS OF COURT.
The only way in which a clerk of court can be controlled by a party litigant with respect to clerk's duty under statute to issue process immediately upon filing of a declaration in circuit court is through a process of the court (Code 1930, sec. 520).
6. ACTION.
A party who commences action in circuit court by filing declaration can assume that clerk of court will perform statutory duty to issue summons immediately, and party will not be deprived of his right accruing from the filing of the suit until such reasonable time as he would be called upon to institute some proceeding to compel compliance with the law by the clerk (Code 1930, sec. 520).
APPEAL from the circuit court, Prentiss county; HON. CLAUDE F. CLAYTON, Judge.
Sharp Sharp, of Booneville, for appellant.
The circuit court of Prentiss County, Mississippi, erred in sustaining the plea in abatement filed by the appellees to the declaration of the appellant.
Code of Miss., Secs. 327, 520; Williams v. N.Y. Life Ins. Co., 132 Miss. 345, 96 So. 97; Bank v. Hoyt Bros., 74 Miss. 221, 21 So. 12; Wood v. Peerey, 179 Miss. 727, 176 So. 721; Swalm v. Sauls, 141 Miss. 515, 106 So. 775; Bacon v. Gardner, 23 Miss. 60; Stewart v. Petitt, 94 Miss. 769, 48 So. 5; 1 C.J.S. 1399, sec. 129; Davidson v. So. Pac. Co., 44 Fed. 476; Tribby v. Wokee (Tex.), 11 S.W. 1089.
The true issue before the court is whether or not an action or suit was pending in this cause at the time of the filing of the bill in the chancery court, and whether or not an action was pending in the circuit court depends upon what constitutes the beginning of an action
We have two statutes pertaining to the commencement of actions. Section 327, Code of Mississippi 1930, pertains to the commencement of an action in the chancery court. The other statute pertaining to the commencement of an action in the circuit court is Section 520, Code of Mississippi 1930.
The court has uniformly held that a suit in chancery is begun when the bill is filed.
Bank v. Hoyt Bros., 74 Miss. 221, 21 So. 12.
This court construed Section 520, Code of Mississippi 1930, in the case of Wood v. Peerey, 179 Miss. 727, 176 So. 721, wherein the court speaking through Judge Anderson said: "What the court held in the case of Swalm v. Sauls, 141 Miss. 515, 106 So. 775-777, with reference to what constituted the begining of a suit in the chancery court, applies with equal force here. In that case the court said: `The filing of the bill, with request for summons (which request is to be understood as having been made, if the contrary is not expressed) is such a commencement of a suit in the chancery court as to stop the running of the statute of limitations. Bacon v. Gardner, 23 Miss. 60.'"
In the present case the record shows that the plaintiff filed his declaration with the clerk of the circuit court on the 1st day of July, 1939, and asked that summons for the defendant be issued immediately and deposited with the clerk the fees required by law for the service of the process and requested that the clerk immediately issue process thereon and forward same, together with the fees required by law, to the sheriff of Hinds County, Mississippi, to be served upon the State Insurance Commissioner, the agent for service designated by the defendant, as provided by law, but through oversight the clerk failed to impress the seal of his office upon the summons, but the summons was issued and duly served as issued upon the State Insurance Commissioner, and immediately after the plaintiff learned that the clerk had omitted to place the seal of his office upon the summons, alias process was requested and same was issued and served.
The plaintiff did all that he could do and all that the law required him to do to commence his action in the circuit court, and he now contends that under the facts in this case the action was commenced and became a pending cause in the circuit court of Prentiss County, Mississippi, from the filing of the declaration, the payment of the necessary fees for service of process, and the request that summons immediately issue.
If this were not the law, litigants and lawyers could be thwarted and defeated in their efforts to obtain recourses through the court by the ignorance, neglect or misfeasance of the clerks.
We are familiar with the case of Stewart v. Petitt, 94 Miss. 769, 48 So. 5, and other similar holdings of the court, but in that cause and in other similar cases, process was not issued at the time of the filing because the plaintiff requested that summons be not issued at the time of the filing, but if we disregard the facts in that case, the plaintiff is not bound by a strict interpretation of the language used by the court in that case because the case of Wood et al v. Peerey, 179 Miss. 727, 176 So. 721, is a later case, and the facts in the Stewart case are altogether different from the facts in this case, and we concede that if the plaintiff in this case had requested process to be not issued and no process had been issued until after the filing of the petition in the chancery court, that probably the plea in abatement should be sustained.
Where it is the duty of the clerk to issue process at once, the commencement of the action will not be postponed beyond this filing of the complaint by his delay in doing so; nor will it be presumed that suit delayed was pursuant to instructions from plaintiff.
Davidson v. So. Pac. Co., 44 Fed. 476; Tribby v. Wokee (Tex.), 11 S.W. 1089; 1 C.J.S. 1399, sec. 129.
E.L. Joyner, of Tupelo, Floyd W. Cunningham, of Booneville, and L. Barrett Jones, of Jackson, for appellees.
Section 520, Code of 1930, requires the issuance of process immediately, and the statute further provides that if the process shall be issued the suit shall be deemed commenced from the time of the filing of the declaration, but the necessary conclusion is that process must be immediately issued in good faith for the defendant, in order that the cause may be treated as a pending one as of the date of the filing of the declaration.
When Section 520 speaks of the issuance of process, it, of course, means process issued in the manner and form required by law, in other words, the issuance of valid process.
The court has held repeatedly that where the seal is not affixed to the process, the process is void, and the defendant is not in court for any purpose.
Pharis v. Conner, 3 S. M. 87; Burton v Cramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Mullins v. Lyle, 183 So. 696; Austin-Western Road Machinery Co. v. Webster County, 170 Miss. 601, 154 So. 723.
The court in Stewart v. Petitt, 48 So. 5, expressly recognized the rule at law, as provided in the statute, that a suit is not commenced until valid process has been issued.
The real question, therefore, is what constitutes the pendency of a prior action, so as to be the basis of a plea in abatement.
The pendency of a prior action between the same parties, involving the same subject matter, is ground for the abatement of another action involving the same parties and the same subject matter.
Gully v. Matthews, 176 So. 277; Abiaca Drainage Dist. of Leflore, Holmes and Carroll Counties, Miss., et al v. Albert Theis Sons, Inc., 187 So. 200; 1 C.J.S. p. 50, sec. 17, and p. 61, sec. 37; 1 Am. Jur. p. 27, sec. 14, p. 29, sec. 17, and p. 449, sec. 58; State ex rel Rice, Atty. Gen., v. Large, 145 So. 346.
It, therefore, becomes necessary to determine whether the chancery suits, under the facts of this record, were pending prior to the time of the circuit court actions to which appellees plead in abatement the pendency of the chancery court suits as a prior action between the same parties, and involving the same subject matter.
The record amply shows and, in fact, counsel for appellant concede that the process issued on July 1, 1939, in the circuit court cases against appellees, had no seal affixed. Moreover, counsel for appellant concede that no alias process was issued for the appellees until September 23, 1939. There was an abortive attempt to issue an alias process on September 1st, but it was void on account of being made returnable to past date.
Counsel also concede that the chancery bills were filed on August 5, 1939, and process had on them on that date; and that the appellant, as defendant in the chancery cases, answered the said bills of complaint on August 22, 1939, and subsequently, on September 13, 1939, demurred to both bills; and that on September 25, 1939, appellees, as complainants in those bills, filed a certain motion to strike, and that on September 25, 1939, by consent of the parties, an order was entered by the chancellor setting the causes for hearing in vacation.
One thing is beyond dispute. Appellant, by both answer and demurrer not only appeared in the chancery causes filed by the appellees, but plead in bar thereto. He did not plead in abatement to the chancery bills the pendency of his circuit court actions as a prior action between the same parties, inolving the same subject matter. Moreover, after having plead in bar, he could not now plead in abatement. He is in the chancery court as completely as any defendant could possibly be, and by his answer and demurrer, he has elected to try the cause there.
That statutes prescribing when a cause of action is commenced are to be strictly complied with and are to be given strict construction is demonstrated in the case of Randall v. Bacon (Vt.), 24 Am. Rep. 100.
Counsel for appellant cite 1 C.J.S. page 1399, to the effect that the delay of the clerk in issuing process will not affect the commencement of an action, but the instant case is not one of delay, for the clerk did not delay. It is a question of whether the process, as issued, was valid or invalid, and it was clearly invalid, and so far as being the commencement of the action, it might as well not have been issued, because when the statute requires the issuance of process immediately, it means the issuance, of necessity, of valid process — that process which would bring the defendant within the jurisdiction of the court and require him to plead to the declaration or suffer a valid default judgment; and it is, of course, well settled that invalid process would not support even a default judgment, and the reason for its failure to support a default judgment is the fact that the suit has never been validly commenced.
The appellant, Shackelford, filed two suits in the circuit court of Prentiss County on the 1st day of July, 1939, the suits being upon insurance policies in the respective companies issued to the appellant who was plaintiff in the court below on a stock of merchandise owned by the appellant, Shackelford. A copy of the policies were made exhibits to the declarations, and the declarations set up losses upon said policies on or about the 11th day of April, 1939, while the said policies of insurance were in full force and effect, and alleged that the merchandise and fixtures so insured were completely destroyed and that notice had been given and demand made upon the said companies for the necessary forms upon which to make the proof of loss, but it was alleged that the company neglected, failed and refused to furnish said forms, but instead they executed a non-waiver agreement in lieu thereof, a copy of the said agreement filed as exhibit B to the declarations, and demanded judgment upon said policies for the said loss. On the same day that the declarations were filed, process was issued to the defendants by the clerk, but by error or omission of the clerk, the seal of the court was not placed upon the process. The process was directed to the sheriff of Hinds County, Mississippi, and was received by the sheriff and executed by him on the 6th day of July as being served upon the said defendants by delivering a true copy of the same to John S. Williams, III, Insurance Commissioner of the State of Mississippi and attorney for process for the said non-resident defendants, on this 6th day of July, 1939. Both the insurance companies were non-residents of the State of Mississippi, but were doing business within the state and the law provided for service upon the said Insurance Commissioner in such cases. The clerk of the circuit court, after the return of the process on or about the 23rd day of September, 1939, in examining the papers observed the omission of the seal therefrom and an alias summons was issued on the 23rd day of September, 1939, directed to the sheriff of Hinds County to be served upon the defendants which was executed by delivering a copy to the Insurance Commissioner, John S. Williams, III, and the sheriff of Hinds County returned the said process on the 28th day of September, 1939. The summons commanded the defendants to appear at the courthouse in the town of Booneville on the second Monday of February, 1940, then and there to answer the complaint filed in said court. The first process mentioned was returned to a term of court to be held on the first Monday of August, 1939. The defendants filed a plea in abatement on February 12, 1940, in which plea in abatement it was alleged that there is now pending in the chancery court of Prentiss County, Mississippi, a prior action between the same parties which action was commenced prior to the commencement of the above-styled cause and that said cause pending prior action between the said parties in the chancery court of Prentiss County involves the same subject matter and the same cause of action, and in the same manner and to the same extent as involved in the above-styled causes in this court, and that in the said pending prior action between the parties in the chancery court, all the rights of the aforesaid parties to this cause of action may be fully and finally determined and adjudicated as fully and finally as the same can be in the above-styled cause of action in this court; that the two causes of action in said courts are identical in particulars to the extent that a determination and disposal of the aforesaid pending prior action in the chancery court of Prentiss County, Mississippi, would constitute a complete adjudication of the matters between the parties in the above-styled cause in this court. The complainant refers to the entire file of the proceedings in Cause No. 4670 in the chancery court of Prentiss County, and asks that the same be taken in and considered as an exhibit hereto as if the same were fully copied herein.
The plaintiff in the circuit court suit filed a replication to this plea in abatement in which he denied that at the time of the commencement of the above-styled cause by the plaintiff in the circuit court of Prentiss County, Mississippi, there was then pending in the chancery court of Prentiss County a prior action, or any action, between the same parties, and denied that any such action was commenced prior to the commencement of this cause in the circuit court of Prentiss County, but avers that on the 1st day of July, 1939, he filed with the circuit clerk of Prentiss County, Mississippi, the declaration in this cause, and deposited with the clerk on said date the fees required by law to be deposited for service of process on the Insurance Commissioner of the State of Mississippi, the agent designated for service of process in the State of Mississippi by said defendant, and requested that process immediately issue for said defendant in the manner and form provided by law, and that upon said date the clerk of the circuit court of Prentiss County, Mississippi, filed said declaration and issued process thereon, as shown by the general docket of said clerk.
He further averred that on the fifth day of August, 1939, more than thirty days after the filing of the declaration with the clerk of the circuit court of said county, the defendant insurance companies filed a bill in the chancery court of Prentiss County, No. 4670 on the docket of said court, and further averred that a demurrer had been interposed to the bill in the chancery court, and that all matters and defenses set up in the bill in the chancery court can be interposed and availed of by the defendant in this cause as fully and completely as in the chancery court, and that this is an action at law and all defenses to which the defendant is entitled can be interposed in this court as effectually as in the chancery court.
The bill filed by the defendants in the chancery court sought a cancellation of the policies because of non-compliance with the conditions in the policies on the part of the plaintiff in the circuit court, the defendant in the chancery court, setting out the clauses in the policies alleged to be violated by Shackelford, the insured, the plaintiff in the circuit court suit, and the defendant in the chancery court suit, and set forth that the insurance companies had been served with garnishment in Shelby County, Tennessee, by a mercantile company in Memphis, Tennessee, and had been served with garnishments in the courts of Fulton County, Georgia, at Atlanta, by the Pilot Shoe Company, of Baltimore, Maryland. It was then charged in the bill in the chancery court as follows: ". . . and further charges that the defendant has attempted to institute a suit against complainant in the circuit court of Prentiss County, Mississippi, under Cause No. 1784, styled `M.L. Shackelford v. New York Underwriters Insurance Company,' and that defendant has attempted to serve process upon this complainant, but that the process issued and attempted to be served on complainant was and is wholly void because of the failure of the circuit clerk to attach his official seal to either the original process or the copy thereof attempted to be served on your complainant, and complainant charges that it is not now impleaded in the circuit court of Prentiss County, Mississippi."
A similar bill was filed by the Franklin Fire Insurance Company with identical allegations, and prayed for a decree cancelling the policies issued by the respective companies.
This suit in the chancery court was answered and a demurrer interposed as part of the answer on the ground (1) that there is no equity in the bill; (2) that the complainant has full, adequate and complete remedy at law; and (3) that said original bill shows that a cause of action involving the same matters as set out in the original bill was pending in the circuit court of Prentiss County, Mississippi, at the time of the filing of said bill, and that all of the alleged defenses set up in said original bill can, and should be availed of in a court of law, and in the case pending in the circuit court of Prentiss County, Mississippi, between the same parties.
Complainants in the chancery court filed a motion to strike one of the grounds of demurrer from the files, and the cause, by consent of the parties, was taken under advisement to be decided in vacation by the chancellor, and had not been disposed of at the time judgment was rendered in this cause in the circuit court, which judgment sustains the defendants' pleas in abatement. A motion to strike a ground of demurrer is unknown to the practice in Mississippi.
It will be noted from the above statement that the plaintiff filed his suit in the circuit court and directed process to be issued thereon and paid the fees for such service of process prior to the institution of the suit in the chancery court by the said insurance companies. It further appears from the bill filed in the chancery court that the insurance companies had knowledge of the filing of the said suit, and that the attempted illegal process issued by the clerk, which was illegal solely because the seal was omitted therefrom, had been actually served upon the insurance companies. The question presented for decision is, was the suit in the circuit court a pending suit from the filing of the declaration therein, or were the proceedings wholly void until the second process was issued with the seal of the court upon it?
Section 520 of the Code reads as follows: "Except in cases in which it is otherwise provided, the manner of commencing an action in the circuit court, shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued; and an action shall, for all purposes, be considered to have commenced and to be pending from the time of the filing of the declaration, if a summons shall be issued thereon for the defendant, and, if not executed, other like process, in succession, may be issued, in good faith, for the defendant."
Section 474 of the Code of 1930 provides: "All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever."
We think that it is the purpose of the legislature in enacting Section 520 to adopt for the circuit court the practice of the chancery court of making the filing of the declaration or bill of complaint the beginning of a suit if process was issued thereon. It will be noted from a reading of Section 520 that the section directs the process to be immediately issued. If the process is not directed to be held up by the party filing it, it is the duty of the clerk to issue it immediately and the plaintiff or complainant will not be deprived of the benefits of filing for any default or neglect of the clerk unless such default or neglect is attributable to the plaintiff or complainant.
In Williams v. New York Life Ins. Co., 132 Miss. 345, 96 So. 97, it was held a suit in chancery is begun when the bill is filed with the clerk of the chancery court. This opinion cites Meridian Nat. Bank v. Hoyt Bros. Co., 74 Miss. 221, 21 So. 12. It was held in Wood et al. v. Peerey, 179 Miss. 727, 176 So. 721, that the filing of a declaration on November 14, 1936, with request to the circuit clerk to issue summons at once in an action on a note which was due November 15, 1930, which constituted the beginning of a suit, stopped running of 6-year statute of limitations, notwithstanding the clerk delayed issuance of summons until November 18, 1936, and summons was not served until December 3, 1936.
In the course of the opinion, this court said, after quoting the section involved here, Section 520, Code of 1930:
"What the court held in Swalm v. Sauls, 141 Miss. 515, 106 So. 775, 777, with reference to what constituted the begining of a suit in the chancery court, applies with equal force here. In that case the court said: `The filing of the bill, with request for summons (which request is to be understood as having been made, if the contrary is not expressed), is such a commencement of a suit in the chancery court as to stop the running of the statute of limitation. Bacon v. Gardner, 23 Miss. 60.'
"Appellee did all he was required by law to do in order to stop the running of the statute. His rights were not defeated by the dereliction of duty on the part of the clerk."
There seems to have been an attempted distinction drawn between the pending of suit for the purpose of tolling the statute of limitations, and the case here of priority between two suits filed in different courts, one by the plaintiff in the circuit court, and one by the defendants as complainants in the chancery court.
We think that under the authorities herein cited that the suit in the circuit court was begun when the declaration was filed and summons attempted to be issued. When a plaintiff files a declaration for the purpose of beginning suit, the suit is begun unless the plaintiff or his attorney or agent shall direct the process not to be then issued. The statute imposes the duty on the clerk to issue the process, and in this case the clerk undertook to do so, but by error omitted to place the seal on the summons. Plaintiff cannot be held responsible for the omission of the clerk. The only way in which a clerk can be controlled by a party litigant is through a process of the court. The litigant has the right, under these decisions, to assume the clerk will perform the duty and issue the summons, and will not be deprived of his rights accruing from the filing of the suit until such reasonable time as he would be called upon to institute some proceeding to compel compliance with the law by the clerk. It appeared in the face of the bill filed in chancery court that the complainants therein, the defendants in this suit, had actual knowledge of the filing of the suit in the circuit court and of the mistake or error on the part of the clerk. Consequently, that error or failure to put the seal on the process did not affect the plaintiff's right in the circuit court suit, all of which matters involved in the application of the chancery suit being assertable in the circuit court.
It follows from what we have said that the judgment of the court below must be reversed, and the cause remanded for further proceedings in the circuit court.
Reversed and remanded.