Opinion
No. 32100.
January 27, 1936. Suggestion of Error Overruled February 17, 1936. ON MOTION TO DISMISS.
1. APPEAL AND ERROR.
Whether appellant has right, title, or interest in and to subject-matter of litigation is question relating to the merits which is not determinable on motion to dismiss.
2. APPEAL AND ERROR.
Dismissal of a case without prejudice held "final judgment" within statute authorizing appeal to Supreme Court from any "final judgment" of circuit court in civil case (Code 1930, section 13).
ON MERITS. (Division B. March 9, 1936.) [166 So. 376. No. 32100.]1. PARTIES.
Order to amend declaration in tort action by bringing in corporation, to which plaintiff assigned right of action before bringing suit, as party thereto, and dismissal of suit for noncompliance with such order, held erroneous (Code 1930, section 505).
2. ASSIGNMENTS. Parties.
Statute requiring that assignment of chose in action be in writing, filed with papers, held not in conflict with statute authorizing institution or continuance of action in assignor's name or substitution of assignee as plaintiff on his application (Code 1930, sections 505, 507).
APPEAL from the circuit court of Coahoma county; HON. WM. A. ALCORN, Judge.
Brewer Montgomery, of Clarksdale, for appellee, on motion to dismiss.
It appears from the order that Mrs. Annie P. Solomon, appellant, has no interest of any kind in the subject-matter of the litigation, and nowhere in the record does it appear that she is appealing or attempting to appeal on behalf of or for the use and benefit of the General Exchange Insurance Company.
If Mrs. Solomon, individually, has no right to the subject-matter of the litigation, then she has no right to an appeal, because she has lost nothing by the order from which she is attempting to appeal. The order is not final; but even if it were final, Mrs. Solomon would have no right to complain.
Section 18, Code of 1930; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124; R.R. Co. v. Williams, 109 Miss. 549, 68 So. 776.
A final judgment within the meaning of the statute is a judgment adjudicating the merits of the controversy. In the present case, the circuit court decided nothing on the merits, and the judgment appealed from is not a final judgment within the statute.
R.R. Co. v. Williams, 109 Miss. 549, 68 So. 776; Bank v. Long Creek Drainage District, 133 Miss. 531, 97 So. 881; Dunagin v. National Bank, 118 Miss. 809, 80 So. 276; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124.
E.W. Smith and Pat D. Holcomb, both of Clarksdale, for appellant, on motion to dismiss.
Section 505 of the Mississippi Code of 1930, positively and unequivocally grants the right to an assignee to begin, prosecute, and continue an action in the name of the original party, assignor, and by that right is necessarily embraced that of an appeal to the Supreme Court.
Ridgeway v. Jones, 122 Miss. 631, 84 So. 612; Bolivar Compress Co. v. Mallett, 139 Miss. 213.
The order of the court brings this case clearly within the purview of section 13 of the Mississippi Code of 1930; for it was an involuntary dismissal and a final adjudication of the rights of the parties to the record, and as announced in 3 C.J., sec. 258, page 445, "It has also been held that the question of whether a judgment, order or decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on a consideration of the essence of what is done thereby, or by its effect upon the rights of the parties."
The order certainly terminates the litigation between the parties on the merits, for it is a final dismissal without the consent of appellant, and a compulsory nonsuit, and there was nothing more for the plaintiff to do. Of course, another party could have been brought in, but, as is reflected by the record, the order is a final judgment as between the appellant and appellee.
Anderson v. Henderson, 103 Miss. 211, 60 So. 137; Gill v. Jones, 57 Miss. 367; Ewing v. Glidwell, 3 How. 332, 34 Am. Dec. 96; Jacobs v. New York Life Ins. Co., 71 Miss. 656; Feed Milling Co. v. Warren County, 159 Miss. 167; Davis v. Jennings, 111 N.W. 128.
E.W. Smith and Pat D. Holcomb, both of Clarksdale, for appellant.
The lower court erred in overruling plaintiff's motion to strike the notice under the general issue and in holding that the General Exchange Insurance Company, assignee, was unauthorized by section 505 of the Mississippi Code of 1930 to begin, prosecute and continue this cause in the name of the plaintiff, the assignor.
It is respectfully submitted that section 505 of the Mississippi Code of 1930, positively and affirmatively grants to the assignee the right asserted here, and, too, the defendants could not complain by the plea, which in reality was in abatement, and was filed after the plea of general issue.
Rice v. Patterson, 92 Miss. 666; Kelly v. Continental Casualty Co., 87 Miss. 40, 40 So. 1; Bolivar Compress Co. v. Mallett, 139 Miss. 213; Ridgeway v. Jones, 122 Miss. 631, 84 So. 612.
It is respectfully urged that the sole purpose of the defendants was to bring to the attention of the jurors evidence of insurance, which was highly prejudicial in such a controversy, and that the mention of insurance would alone have been a reversible error.
Herrin v. Daly, 39 So. 970, 80 Miss. 340; Williams v. Karkin, 166 Miss. 837; 8 R.C.L. 557, sec. 108; Kelly v. Continental Casualty Co., 87 Miss. 40, 40 So. 1.
The lower court was without authority to dismiss this law suit on motion of the defendant because of the refusal of the plaintiff to accede to the defendant's request to amend their pleadings, for the nature of the plea was the disability of the plaintiff and not in bar of the right.
Sections 505 and 532, Code of 1930; Moore v. Knox, 46 Miss. 602.
Brewer Montgomery and Charles A. Sisson, all of Clarksdale, for appellee.
The notice under the plea was filed in conformity with section 514 of the Mississippi Code of 1930.
It does not appear from the face of the amended declaration on file in the cause that there was a nonjoinder of plaintiffs. This being true, appellee strictly complied with the law and gave written notice as required. It has been many times held by this court that before a defendant can avail himself or itself of nonjoinder of plaintiffs section 514 must be complied with.
Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79; McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264; Wells v. Railway Co., 96 Miss. 191, 50 So. 628.
The General Exchange Insurance Company, in the absence of compliance with section 507, is a necessary party. It is the sole owner of any cause of action that might exist as a result of the collision involved in the present case. As the record now stands the General Exchange Insurance Company is not a party to this suit and the court is powerless to enter any judgment which would be binding on it.
Upon appellee's motion the General Exchange Insurance Company should have been made a party plaintiff in the absence of compliance with section 507.
McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264.
The lower court properly gave the appellant an opportunity to amend her declaration so as to make the General Exchange Insurance Company a party plaintiff. Upon the plaintiff's, or appellant's, refusal to so amend, the court properly entered a nonsuit without prejudice,
McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264; Ham v. Kings Daughters, 170 Miss. 490, 155 So. 164; Smith v. Denny Co., 90 Miss. 434, 43 So. 479; Burroughs v. Jones, 78 Miss. 235, 28 So. 944; Lemmon v. Dunn, 61 Miss. 210.
It is submitted that the appellee followed the course under the statute by complying with sections 514 and 536 of Code of 1930, which, when considered with sections 505 and 507, was the only proper course that appellee could take and protect itself from the possibility of a double recovery for the same cause of action; and that the learned lower court properly ruled.
ON MOTION TO DISMISS.
The appellant, the plaintiff in the court below, sued the appellee for damages resulting from a personal injury alleged to have been sustained by her, because of the negligence of one of the appellee's servants. On motion of the appellee, the court below dismissed the cause; its judgment reciting that "the plaintiff in the absence of the jury having admitted that the right for damage arising out of the accident set forth in the declaration herein had before the institution of this suit been assigned to the General Exchange Insurance Company, and the defendant having moved the court to require the plaintiff to amend her pleadings herein to show said fact upon penalty of the dismissal of this suit, and the court having required the plaintiff to make said amendment and the said plaintiff having refused to do so, but electing to prosecute this cause in the name of the plaintiff alone, and the court being being of the opinion that the motion of the defendant that this cause be dismissed should be sustained by reason of the failure on the part of the plaintiff to amend the pleadings herein, it is, therefore, accordingly ordered and adjudged that this cause be and the same is hereby dismissed without prejudice."
The appellee has filed a motion to dismiss this appeal on two grounds:
(1) The order of the circuit court of Coahoma county, Mississippi, upon which this appeal is based, shows from its face that appellant, Mrs. Annie P. Solomon, has no right, title, or interest in and to the subject-matter of litigation.
(2) It affirmatively appears from the order appealed from that the case was dismissed without prejudice, and therefore there is no final judgment in the case from which an appeal can be prosecuted.
The first of these grounds relates to the merits of the case determinable, not on a motion to dismiss, but when the court comes to the consideration of the assignments of error. State v. Woodruff, 83 Miss. 107, 35 So. 422.
Second, the appellee says that the dismissal of a case without prejudice is not a final judgment within the meaning of section 13, Code 1930, which provides that "an appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case, not being a judgment by confession or from any final decree of the chancery court, not being by consent, by any of the parties or legal representatives of such parties." The cases (Ewing v. Glidwell, 3 How. 332, 34 Am. Dec. 96; Copeland v. Mears, 2 Smedes M. 519; Greenlee v. McCoy, 30 Miss. 588; and Jones v. Kennedy, 81 Miss. 499, 33 So. 287) holding that a judgment of nonsuit or dismissal rendered at the instance of a plaintiff is not appealable by him for the reason that he consented thereto are not applicable here, for this appeal is not from a judgment rendered at the request of the plaintiff, but one rendered against her will and over her protest. The appellee's contention is that the judgment contemplated by the statute is one disposing of the merits of the controversy between the parties, and not one simply disposing of the particular case, leaving the merits of the controversy undisposed of and permitting the plaintiff to institute a new action. The argument was negatived by this court more than fifty years ago in Gill v. Jones, 57 Miss. 367, wherein it was said: "It is urged, however, on behalf of the plaintiff in error that the circuit court had no jurisdiction, and that the appeal to that court should be dismissed. He insists that the judgment rendered by the justices of the peace, being a dismissal of the complaint for want of prosecution before them, was not a final judgment; that the plaintiff was not concluded by it, and had a right to institute his suit anew, and that therefore no appeal to the circuit court will lie. It is true that the judgment of dismissal for want of prosecution does not finally determine the rights of the parties litigant, but it is a final determination of that suit. Under statutes allowing appeals only after final judgment, the decisions have been uniform, so far as our researches extend, that the judgment is to be understood as final if it puts an end to the particular suit in which it is rendered, whether it finally determines the rights of the parties or not." That case was followed in McKinnon v. Horn, 78 Miss. 307, 29 So. 149; Feazell v. Staltzfus, 98 Miss. 886, 54 So. 444; and is in accord with the holdings of the courts of other jurisdictions. Weston v. City Council of Charleston, 2 Pet. 449, 450, 7 L.Ed. 481; 3 C.J. 497; 2 R.C.L. 42; 1 Freeman on Judgments (5 Ed.), secs. 22 and 23.
The two cases relied on by the appellee are Gulf Ship Island R. Co. v. Williams, 109 Miss. 549, 68 So. 776, and State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124. In the second of these cases the plaintiff appealed from an order dismissing the case at his request, and in the first the defendant appealed from an order of dismissal made at the request of the plaintiff. In both of these cases the appeals were dismissed; the court saying that the dismissal of an action without prejudice was not a final judgment. This holding of the court was in conflict with its prior decisions, and in the second case was not necessary for the decision thereof.
In none of the cases cited from other jurisdictions in either of these cases were the courts called on to determine whether a judgment of nonsuit or dismissal was a final judgment for the purpose of an appeal. In Bostwick v. Brinkerhoff, 106 U.S. 3, 1 S.Ct. 15, 27 L.Ed. 73, the trial court dismissed a bill of complaint on demurrer thereto. The state Court of Appeals reversed ( 88 N.Y. 52) this judgment, "with leave to the defendants to withdraw the demurrer . . . and answer the complaint." This judgment not only did not terminate the particular case, but left it open for further proceedings therein on the merits of the controversy between the parties.
In Mower v. Fletcher, 114 U.S. 127, 5 S.Ct. 799, 29 L.Ed. 117, the appeal was from a judgment reversing a trial court and directing that court to render a judgment for the opposing party. This judgment, the court said, was final. It is true that in both of these cases the court said that a judgment or decree, to be final, within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeals and writs of error, must terminate "the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment [or decree] it had already rendered." In neither, however, did the court have under review a judgment which disposed of a particular case by dismissing it, leaving the merits of the controversy open.
In Weston v. City Council of Charleston, 2 Pet. 449, 450, 464, 7 L.Ed. 481, the court had just such a judgment under review. In that case a writ of prohibition was issued, restraining the city of Charleston from collecting taxes claimed to be due it by Weston. No suit or action had been begun by the city, but Weston sued out a writ of prohibition restraining the city from collecting the taxes claimed. The state court reversed the order granting the writ, overruled the ground on which the writ was sued out, and dismissed it. No judgment was or could have been there rendered, awarding the city the right to recover the tax. In response to a motion to dismiss the appeal, the court said: "We think also, that it was a final judgment, in the sense in which that term is used in the 25th section of the judiciary act. If it were applicable to those judgments and decrees only in which the right was finally decided, and could never again be litigated between the parties, the provisions of the section would be confined within much narrower limits than the words import, or than Congress could have intended. Judgments in action of ejectment, and decrees in chancery, dismissing a bill, without prejudice, however deeply they might affect rights protected by the constitution, laws or treaties of the United States, would not be subject to the revision of this court. . . . The word `final' must be understood in the section under consideration, as applying to all judgments and decrees which determine the particular cause."
In Doudell v. Shoo, 159 Cal. 448, 114 P. 579, the judgment under review was interlocutory, and therefore of course was not a final judgment.
In Wilson Gray v. May Pants Co. (Miss.), 37 So. 813, an action before a justice of the peace was dismissed without prejudice to the rights of the plaintiff thereafter. The plaintiff brought another suit on the same cause of action, and the former judgment of dismissal was pleaded in bar thereof. The court simply held that the judgment of dismissal did not bar a subsequent action on the merits
The appellee in State ex rel. Brown v. Poplarville Sawmill Co., supra, was properly dismissed, for the reason that the appeal was by the plaintiff from a nonsuit taken by him; but the expressions therein, and in Gulf S.I.R. Co. v. Williams, supra, to the effect that a judgment dismissing an action or suit without prejudice is not a final judgment within the meaning of section 13 of the Code of 1930, are disapproved and overruled.
The motion will be overruled.
The appellant, Mrs. Annie P. Solomon, plaintiff in the court below, brought a suit, in tort, against the appellee, Continental Baking Company, for an injury to her automobile occasioned by a collision between it and a truck owned by the appellee. Prior to the bringing of this suit, the right of action had been transferred to the General Exchange Insurance Company, whose attorneys brought this suit in the name of the original claimant.
The appellee pleaded the general issue, with notice thereunder alleging that the claim had been assigned to the General Exchange Insurance Company, and that it was a necessary party to the litigation, and praying that the plaintiff be required to amend the declaration to show that fact, or that the suit be dismissed.
In the absence of the jury, the appellant stated to the court that the cause of action had been assigned to the General Exchange Insurance Company prior to the bringing of this suit, but that under section 505, Code of 1930, the plaintiff had the right to have the suit brought in her name, and the court had no right to require them to make an amended declaration. The plaintiff also moved to strike the notice under the plea of the general issue, because it was unauthorized in this proceeding.
The court sustained the motion of the defendant, appellee, to require the appellant to bring in as a party to the litigation the General Exchange Insurance Company.
The attorneys for the appellant stated to the court that they represented the General Exchange Insurance Company, and the suit was brought for that company in the name of the appellant, and declined to make the amendment which the court directed the appellant to make or the suit would be dismissed. The court, thereupon, dismissed the suit without prejudice, and granted an appeal to this court.
Section 505, Code of 1930, reads as follows: "The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the case, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit."
We are of the opinion that the court below was in error in making an order requiring an amendment, and dismissing the suit for failure to comply with such order. It will be seen from the above-quoted section that a suit may be brought or continued in the name of the original party, and that the court will allow the person to whom the transfer has been made, on his application, to be substituted as a party plaintiff in said action. This statute enlarges the rights conferred upon the assignee by the common law, and has been applied in a number of suits. See Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79; Ridgeway v. Jones, 122 Miss. 624, 84 So. 692; Kelly v. Continental Casualty Co., 87 Miss. 438, 40 So. 1, and Rice v. Patterson, 92 Miss. 666, 46 So. 255.
It is argued by appellee that section 507, Code of 1930, requires an assignment to be in writing and filed with the papers, and that such an assignment was not made in the case at bar. The provisions of section 507 are not in conflict with section 505. Section 507 provides for an assignment and the making of entries thereon, which is evidently for the protection of the parties having no notice, and who deal with the matter of the assignment as purchasers in good faith, without notice, and also to prevent comment being made by attorneys that other attorneys had an interest in the litigation.
The judgment of the court below will therefore be reversed, and the cause remanded, for further proceedings in accordance with this opinion.
Reversed and remanded.