Hutchens
v.
Craig

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Mississippi, In BancNov 25, 1940
189 Miss. 772 (Miss. 1940)
189 Miss. 772198 So. 736

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No. 34312.

November 25, 1940.

ABATEMENT AND REVIVAL.

The pendency of a suit in chancery by state tax collector for alleged failure of deceased chancery clerk to account to state, county, and levee districts for money belonging to them which allegedly came into deceased's hands as chancery clerk, in which executrix of estate of deceased chancery clerk and state auditor were among defendants, and wherein relief sought against state auditor was that he be enjoined from issuing a warrant to executrix for money due deceased chancery clerk for fees in connection with lands sold to state for taxes, was not ground for abatement of mandamus proceeding by executrix to compel state auditor to issue warrant to executrix for money due deceased chancery clerk, where record of pleadings in chancery suit showed that executrix was only resisting suit of tax collector and was not seeking affirmative relief (Code 1930, sec. 6042).

APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.

Johnson Allen, of Indianola, for appellant.

Pleas in abatement are looked upon with disfavor by this court.

Grenada Bank v. Bourke, 110 Miss. 342, 70 So. 449; Wood Preserving Co. v. Meyer, 76 Miss. 586, 25 So. 297.

Section 6042 of the Code provides that fees of all county officers allowed by law in connection with lands sold to the state for taxes shall be paid by the state when such land shall be sold by the state, and that upon such sale the land commissioner shall carefully calculate said fees and certify the same to the auditor, who if he finds the same correct, shall issue his warrants therefor to the proper persons. All this was done, and as shown by the agreed statement of facts, the sum of $3,131.15 is owing by the State of Mississippi to the appellant.

The plea in abatement should have alleged (which was not done), and it should appear that the remedy in the suit pending in the chancery court was as ample and efficient as the suit in the circuit court.

Wood Preserving Co. v. Meyer, 76 Miss. 586, 25 So. 297.

For a plea in abatement such as this to be sustained, it must appear that another suit is pending between the same parties on the same cause of action and for the same relief. This is not true here. The parties are different and the relief prayed for in the chancery suit of Humphreys County by the complainant therein could not be granted, nor could appellant here be granted the relief there which is sought in the instant case.

Griffin v. Bd. of Miss. Levee Com'rs., 71 Miss. 767, 770.

No recovery can be had by the state tax collector, as complainant, against the state auditor, as defendant, in the chancery suit in Humphreys County, the pendency of which is pleaded in abatement, and, therefore, the suit at bar should not have been abated.

Complainant seeks to have the chancery court of Humphreys County direct the state auditor to issue his warrant for said amount of money above mentioned, in favor of complainant, and to require the state treasurer to pay to complainant the said sum of money. The chancery court of Humphreys County is without authority to do so, and, of course, without authority to do so, then certainly it follows that no recovery can be had in the chancery suit in Humphreys County against the state auditor, which suit is pleaded in abatement. There is no authority to sue the state auditor or the state treasurer for the disbursement of funds in the state treasury.

Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 699; City of Biloxi v. Gully, State Tax Collector, et al., 182 Miss. 723, 180 So. 821.

The auditor should, by a writ of mandamus in the instant case, be directed to issue to the appellant his warrant for the amount sued for, less the amount admitted and agreed to be owing by the appellant to the State of Mississippi. The court having no authority to grant the relief prayed for in the Chancery Court of Humphreys County, as against the state auditor, the result is tantamount to there being no pending suit in said court involving the same parties and the same cause of action where the same relief may be granted.

Watkins Eager, of Jackson, for appellant.

The plea in abatement should not have been sustained but should have been overruled, and the appellee should have been required to plead to appellant's petition for mandamus because:

(1) The cause of action is not the same. The appellant seeks by an appropriate proceeding, mandamus, to require the appellee to pay to her, as executrix of said estate, the balance owing to the decedent's estate, as appears from the face of the record. This suit involves no question of official defalcation on the part of the deceased chancery clerk. The suit is brought to require the appellee to pay to the appellant, as executrix of said estate, an amount of money, which, from the face of the record, appears to be admittedly due her. The plea in abatement did not deny the indebtedness on the part of the state to the decedent's estate, thereby admitting the same. The suit of the state tax collector is an entirely different controversy. The state tax collector says that the decedent's estate is indebted to the county, to the levee district, and to the drainage district, in a sum of money in excess of the amount which the state owes to the decedent's estate. The purpose of the two suits is entirely different. One is a petition for mandamus to require the issuance of a warrant for an amount confessedly due, according to the record; the other is a suit by an entirely different officer for an alleged defalcation in his official capacity, not as to state funds, but as to county levee district and drainage district funds. No further statement is required to demonstrate that the cause of action is not the same.

Foote v. Myers, 60 Miss. 790; Griffin v. Bd. of Levee Com'rs., 71 Miss. 767; State v. Large, 145 So. 346, 164 Miss. 318.

(2) The parties are not the same.

(3) Upon the face of the record it appears that the state tax collector can have no relief as to this particular fund. This court has no authority to issue a decree, nor has any other court, requiring the state auditor to withdraw the funds from the state treasury.

Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 698; City of Biloxi v. Gully, State Tax Collector, 182 Miss. 723, 180 So. 821.

The state tax collector cannot, by any kind of process, procure this fund to be withdrawn from the state treasury and paid over to him to be applied on such recovery, if any, he may eventually have against the estate of the tax collector.

Frank E. Everett, Jr., Assistant Attorney-General, for appellee.

There is no principle better settled than the general rule of law that the pendency of a former action in a court of competent jurisdiction within the same state or jurisdiction, between the same parties, and involving the same subject-matter and cause of action, wherein all the right of the parties thereto may be fully and finally determined and adjudicated, may be asserted as a ground for the abatement of the second action. The identity in these particulars should be such that if the pending suit had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties, and unless each of these elements is present, the pendency of one action will not operate to abate a subsequent one.

1 Am. Jur. 27, par. 14; State v. Large, 164 Miss. 318.

The chancery suit is the former action. It is still pending and undisposed of as the record in this case clearly shows.

The Chancery Court in Humphreys County has jurisdiction of all the parties and of the subject-matter and is a court within the same state.

The issue between the auditor and the executrix in the first suit is the same as between the auditor and executrix in the second suit. The same question and problem exists between these two.

It is agreed that the same sum is involved in the two suits, even though there is a slight discrepancy as to the actual figures. It is further agreed that the indebtedness of Mr. Hutchens to the state, county, drainage and levee districts is the same in the first suit as in the second suit. There is no question but that the same subject-matter is involved between these two parties.

The Chancery Court of Humphreys County having jurisdiction over the parties and subject-matter could render its decree, and said decree would be conclusive between the parties as to the subject-matter of said suit. It could be plead in bar to any subsequent action by the same parties concerning the same subject-matter. The mandamus suit is between the same parties and concerns the same subject-matter. It should be decided in the court which first had jurisdiction, and there is no necessity for more than one suit concerning said question. Additional litigation over the question is unnecessary and vexatious and against the policy long established by our courts.

All of the matters will be determined in the chancery suit, and all of the interested parties are there joined, and complete determination of all of the issues between all of the parties, including the issue between the auditor and the executrix, raised by the mandamus suit, can and should be determined by the chancery court, which first had jurisdiction and where the prior suit is now pending. A more equitable and proper adjudication of the entire matter can be had in said chancery court, and it would be binding on all of the parties, including the parties to this appeal.

The case of City of Biloxi v. Gully is not in point and has no application as to whether the auditor shall withhold payment of said funds to the executrix or whether he should issue his warrant to the executrix. There is ample statutory authority for either course, and the court has authority to determine this question in the first suit.

Another point made by the appellant in her brief is that the plea in abatement fails to allege that the remedy in the suit pending in the chancery court was as ample and efficient as the suit in the circuit court and that the failure of the plea to contain such an allegation rendered it ill or bad.

This contention has no merit because the plea in abatement filed in this cause makes full allegation of the nature of the prior pending suit. The pleadings are set forth in an amendment to the bill in abatement, and the matter was thoroughly and completely before the court when its decision was reached. If any defect in said plea existed, the time for making objection thereto was in the lower court before judgment was rendered, and the appellant cannot now object to a defect in a general plea when the question was not properly raised in the lower court. This is not a question of jurisdiction but of pleading, and the appellant cannot be now heard to raise objections to allegations in pleadings even if such defects exist.

Argued orally by W.H. Watkins, Sr., and Elbert Johnson, for appellant, and by W.E. Gore, for appellee.


This is a proceeding begun by the appellant, the executrix of the estate of A.R. Hutchens, deceased, against Carl N. Craig, State Auditor, revived in the name of J.M. Causey, who succeeded Craig as State Auditor, alleging that A.R. Hutchens was clerk of the chancery court of Humphreys County at the time of his death; that the State then owed him the sum of $3,131.15, the aggregate of fees due him by the State under Section 6042, Code of 1930, "in connection with lands sold to the state for taxes" and prayed for a writ of mandamus directing the auditor to issue to her a warrant on the State Treasurer therefor. To this petition the appellee plead in abatement alleging the pendency of a suit in the chancery court of Humphreys County, begun on the third day of November, 1939, and pending at the time of the filing of this petition for a writ of mandamus involving "the same subject matter and parties as are now presented to this court in this suit for mandamus, and the determination of the questions in said prior pending suit in Humphreys County will decide the issues now presented, and the pleadings in said suit in Humphreys County, Mississippi, being cause No. 1272 in said cause, are presented herewith to this court and asked to be made and considered a part of this plea."

The exhibits to this plea disclose the parties to and the nature of the suit pending in the chancery court of Humphreys County. No demurrer or replication in the usual form were filed by the petitioner, but she replied to the plea by an answer admitting and denying allegations of the plea and agreeing that the auditor might deduct the money alleged in the chancery suit, as will hereinafter appear, to be due the State by Hutchens from the money due him by the State, and issue a warrant to the petitioner for the remainder. The case was then submitted to the judge of the court below who tried it without a jury on the pleadings and an agreed statement of facts and rendered a judgment sustaining the plea in abatement and dismissing the petition without prejudice.

The record discloses that the suit plead in abatement of the present action was filed in the chancery court of Humphreys County by J.B. Gully, State Tax Collector, for the use and benefit of the State of Mississippi, County of Humphreys and its several taxing districts, Mississippi Levee District and Yazoo Mississippi Delta Levee District against Massachusetts Bonding Insurance Company, a corporation, Kathleen P. Hutchens, executrix of the estate of A.R. Hutchens, deceased, Citizens Bank Trust Company of Belzoni, Mississippi, Carl N. Craig, State Auditor, and Newton James, State Treasurer.

The cause of action there sued on was the alleged failure of A.R. Hutchens to account to the state, county and levee districts for money belonging to them which came into his hands as chancery clerk, amounting in the aggregate, according to the statement of facts, to more than $10,000, the State's portion thereof being $696.16. The State owes Hutchens $3,131.15 as hereinbefore said. The relief sought in that suit against the State Auditor and State Treasurer is that the auditor be enjoined from issuing a warrant to Kathleen P. Hutchens, executrix of the estate of A.R. Hutchens, deceased, for the money due the deceased by the State, and that on final hearing the auditor be required to issue a warrant therefor to the State Tax Collector, and that the State Treasurer be required to pay the same. The plea in abatement does not allege and the record does not disclose that any preliminary injunction directed to the State Auditor and Treasurer was issued on this bill of complaint, so that we are not here confronted with any question that could arise out of such an injunction.

The plea in abatement fails to allege that the relief that could be awarded the appellant in the chancery suit would be "as ample and efficient" as that which can be awarded her in this mandamus proceeding. Carbolineum Wood Preserving Manufacturing Co. v. Meyer, 76 Miss. 586, 588, 25 So. 297. But the failure to so allege aside, the plea should have been overruled. The record of the pleadings in the chancery suit wherein the appellant is a defendant discloses that she is there only resisting the suit of the Tax Collector, and that a decree therein for her would result only in the dismissal of the bill of complaint against her and the other defendants therein, including the State Auditor and State Treasurer, and as against the auditor and treasurer her right vel non to the money here in question would be undetermined, and in event the auditor should decline to issue a warrant to her therefor, another mandamus proceeding against him would be necessary. Should authority be desired therefor, it will be found in Foote v. Myers, 60 Miss. 790; Griffin v. Board of Mississippi Levee Commissioners, 71 Miss. 767, 15 So. 107; State ex rel. v. Large, 164 Miss. 318, 145 So. 346; 1 C.J.S., Abatement and Revival, sections 39 and 43; 1 Am. Jur., Abatement and Revival, Sections 14 and 26.

Two additional reasons for overruling this plea in abatement are asserted by counsel for the appellant, but we will not pause to inquire therein.

Reversed and remanded.