Summary
holding that a trial court's dismissal not expressly stating "without prejudice" is by implication a dismissal with prejudice
Summary of this case from Smith v. Union Bank Trust Co.Opinion
No. 35303.
April 5, 1943.
1. DISMISSAL AND NONSUIT.
Where order did not recite that case was dismissed without prejudice, case would be considered as a "dismissal with prejudice" (Code 1930, sec. 667).
2. DISMISSAL AND NONSUIT.
The statute authorizing dismissal of causes for want of prosecution does not require parties to suit which has been passed to files until further order of court to remain in constant attendance pending such further order, to show cause why case should not be dismissed when it is withdrawn from files (Code 1930, sec. 667).
3. DISMISSAL AND NONSUIT.
Where suit by grantor's heirs to set aside deed for grantor's mental incapacity was remanded to files until further order of court because of pendency of contest of grantor's will for want of testamentary capacity, and some two years after will was invalidated life tenant under grantee's will had suit reinstated, statute authorizing dismissal of pending causes for want of prosecution did not apply so as to authorize dismissal with prejudice of suit as a "stale case" as against heirs who were not advised of reinstatement of suit (Code 1930, sec. 667).
4. EQUITY.
A bill to review decree dismissing suit with prejudice, which bill disclosed error apparent on face of record, was not demurrable.
APPEAL from chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Lotterhos, Travis Dunn and George E. Shaw, all of Jackson, Campbell Campbell, of Yazoo City, L.G. North of Belzoni, and Cameron Wills, of Meridian, for appellants.
A number of facts stand out boldly in this record: (1) The original complaint was remanded to the files by decree of the court in 1924. The special demurrer was sustained, but the court specifically declined to dismiss the bill, saying "said bill is not dismissed, but shall be and hereby is remanded to the files until further orders of this court." (2) The motion to "docket and dismiss" was made by J.J. Milner as an interested party. (3) The Milner motion, the order thereon directing the clerk to place the cause on the issue docket, the motion of the clerk to dismiss, and the order of dismissal were all made on the same day. (4) The cause was never actually placed on the issue docket. (5) No notice whatsoever, formal or otherwise, was given to appellants or to any one who represented their interests. (6) The bill of review was presented with dispatch after appellants acquired notice of the dismissal. (7) Appellants never abandoned and never intended to abandon their suit.
The lower court purported to act under the provisions of Section 667, Mississippi Code of 1930.
Briefly, it is our position that this cause was not a "stale case" within the meaning of the code section quoted above, since it was not "pending" within the contemplation of that statute. We contend that the statute contemplates and requires notice to be given the parties to be affected and this is necessary in order that they may have an opportunity to show "good cause" for not dismissing the case and that the dismissal of the cause in this instance without such notice was a violation of due process and common fairness and that the order of dismissal is absolutely void. We wish to emphasize at the outset that the dismissal of this cause was instigated and inspired by J.J. Milner, who was an interested party. The clerk of the lower court did not act of his own motion, but was prompted by an interested party who was well aware of the contemplated action. Although appellants and their solicitors were readily available, no notice was given or attempted to be given in any manner whatever. We know not how to describe this proceeding except to say that it is positively shocking to the sense of common fairness and equitable dealing.
The case was not stale since the same had not been pending for two terms prior to the order of dismissal.
Brooks v. Super Service, 183 Miss. 833, 183 So. 484; Gordon v. State, 127 Miss. 396, 90 So. 95, 18 A.L.R. 1150; Byrd v. State, 179 Miss. 336, 175 So. 190; Dubois v. Thomas, 173 Miss. 697, 161 So. 868; Hall v. Commonwealth, 17 Ky. L. Rep. 231, 30 S.W. 877; Code of 1930, Sec. 667.
We respectfully submit that a step had been taken within the meaning of the statute at the term at which the order of dismissal was entered. It seems clear from this record that either one of two conclusions must be drawn from the action of Mr. Milner in filing his motion to have the case placed on the active docket and dismissed. Either Mr. Milner was an interloper and without authority to bring the case from the files, or, if mistaken in this, the action taken by him was a step taken in the case. In either event, appellants must prevail on this appeal.
The original defendant, J.W. Milner, died after the case was remanded to the files. As shown by Mr. Milner's motion, he acquired a life estate in the property involved under the will of J.W. Milner, his father. J.J. Milner was not a party to this cause and the action had not been revived by him or against him. Moreover some of the original complainants had died and the cause was not revived as to them. It seems clear from this that J.J. Milner had no right or authority to take any action whatever in this case until such time as he made himself a party or until such time as the cause was revived as to him. There is no provision of law to authorize the clerk of the lower court to file a motion under Section 667 in a case which has been remanded to the files. If J.J. Milner was an interloper, it follows that his motion to reinstate the cause on the docket was a nullity and the result is that the case continues to remain in the files subject to be withdrawn by any party and placed on the active docket for trial.
If, on the other hand, J.J. Milner was authorized to make his motion, it seems clear that the filing of the motion was a step taken in the cause, and, if this be true, it was necessary that the case remain on the active docket as a pending cause for at least two terms before it could be dismissed under Section 667 of the Code.
We respectfully submit that notice of the motion to docket and dismiss was required under the circumstances and the failure to afford notice amounted to a fraud upon the court and upon the appellants which vitiates the order of dismissal.
Mississippi Central R. Co. v. Brookhaven Lumber Mfg. Co., 165 Miss. 820, 147 So. 814; Willsford v. MeyerKiser Corporation, 139 Miss. 387, 104 So. 293; Weir v. Field, 67 Miss. 292, 7 So. 355; Bryant v. Horton, 124 Miss. 1, 86 So. 642; Code of 1930, Secs. 330, 331, 332, 333, 334; Laws of 1938, Ch. 226; Laws of 1938, Ex. Sess., Ch. 53.
J.G. Holmes, of Yazoo City, for appellees.
At the outset, we desire to call the court's attention to the fact that there is nothing in the bill of review to show that there was any agreement between the parties to the original suit that the case should remain remanded to the files after the determination of the will contest on July 4, 1927, subject to be called up for disposition by either party on notice to the other.
We desire also to emphasize the fact that none of the allegations of the original bill are such as to justify a charge of fraud in the procurement of the order of dismissal. The case here presented, therefore, is one of a bill of review for error apparent on the face of the record.
This being a bill of review for error apparent, it is now well settled that no evidence may be considered, and that only the pleadings, proceedings of record and the decree may be considered.
Majure v. Johnson et al., 192 Miss. 810, 7 So.2d 545.
Confining our examination to the face of the pleadings, proceedings and decree of dismissal without reference to evidence, we are presented with a case which was pending in the court for approximately fifteen years without any step being taken therein and which the court dismissed on the motion of the clerk as a stale case. The order of dismissal became final on the termination of the term, and there was no appeal therefrom. We submit that in this situation the court had the power to dismiss it as a stale case on the motion of the clerk, or on the court's own motion.
Griffith's Mississippi Chancery Practice, Sec. 538; Rule 17 of the Uniform Rules of Practice and Procedure in the Chancery Courts of Mississippi.
While there is no allegation of any express agreement between the parties that the case was to remain remanded to the files after the determination of the will contest, subject to be called up by either party on notice to the other, we submit that even if such an agreement had been alleged, the court would be precluded from the consideration thereof because not reduced to writing and signed and filed in the cause.
Majure v. Johnson et al., supra; Code of 1930, Sec. 390; Rule 22 of the Supreme Court.
A case remanded to the files is a pending case.
Dubois v. Thomas, 173 Miss. 697, 161 So. 868; Darrow v. Darrow, 159 Mass. 262, 21 L.R.A. 100; Griffith's Miss. Chancery Practice, Sec. 538.
Where the case is pending and no step has been taken therein for the two terms preceding, it becomes the absolute duty of the clerk to move to dismiss the same, and it becomes the duty of the court, unless good cause be shown to the contrary, to dismiss the same at the costs of the plaintiff or complainant. The statute is mandatory.
Mississippi Central R. Co. v. Brookhaven Lumber Mfg. Co., 165 Miss. 820, 147 So. 814; Code of 1930, Sec. 667.
The statute in question refers to any case pending in court, whether on the active trial docket or remanded to the files, and any case duly filed and undecided is a pending case, and where no step has been taken in any such case for two preceding terms it becomes the duty of the clerk to move to dismiss the same as a stale case, and an order of dismissal thereon is valid.
No step was taken in this cause for two preceding terms.
There is nothing in the provisions of Section 667 of the Mississippi Code of 1930 requiring notice on the clerk's motion to dismiss as a stale case.
Baker v. Moore, 176 Miss. 431, 169 So. 773.
It is contended by the appellants that the order of dismissal entered on the clerk's motion was void because some of the original parties to the suit had died. There is nothing in the statute, Section 667 of the Code of 1930, which requires the clerk to make any inquiry whatever as to whether or not any of the parties to the suit have died, or which requires a revivor as a condition precedent to the motion of the clerk to dismiss. Parties litigant are required to follow up a case which has been filed in court and if any of the parties have died to take the necessary steps for a revivor and to speed the case to a determination. If they do not do so, a pending cause is subject to dismissal on the motion of the clerk if no step has been taken therein for two terms preceding. The clerk is not required to make any investigation whatever of a pending cause other than to ascertain whether or not any step has been taken therein for two terms preceding, and if this be ascertained to be the fact, it becomes his mandatory duty to move to dismiss the cause. In no event would the order of dismissal be void because some of the parties have died. If any infirmity exists in the order for this reason, the order would be erroneous merely, and not void, and the remedy of the aggrieved party would be by appeal.
American Burial Case Co. v. Shaughnessy, 59 Miss. 398.
It appears from the record in this case that the order of dismissal was entered at the December, 1939, term of the court, and that no motion to set the order aside was made at the same term. It further appears that the December, 1939, term adjourned and five regular terms of court thereafter elapsed before any action with reference to the dismissal order was taken by the appellants, when they undertook to file this bill of review on March 31, 1941. It is respectfully submitted that the order of dismissal was a final judgment and the only remedy of an aggrieved party was by an appeal therefrom. That the dismissal of a case without prejudice is a final judgment has been definitely decided by this court in the case of Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607.
See also American Burial Case Co. v. Shaughnessy, supra; Griffith's Mississippi Chancery Practice, Sec. 622.
The error assigned on this appeal is the action of the court below in sustaining a demurrer and dismissing the bill of complaint of the appellants by which they seek to have reviewed a former degree of the court rendered on December 11, 1939, whereby the suit as originally brought was both redocketed and dismissed on that day as a "stale case" under Section 667, Code of 1930, with prejudice, on the ground that no step had been taken therein for the two terms preceding, and where such suit had long prior thereto been remanded to the files by the chancellor "until the further orders of the Court."
The object sought to be attained by the original suit was the cancellation of a certain deed of conveyance, as a cloud upon the title of the complainants to certain land therein described, which conveyance had been executed in favor of J.W. Milner by L.G. Ross, who had died prior to the filing of such suit and through whom the complainants therein claimed title to the land by inheritance. The validity of the deed from L.G. Ross to said J.W. Milner was challenged on the ground of the alleged mental incapacity of the grantor and inadequacy of the consideration paid to him therefor. And when the cause came on for hearing it appeared from the allegations of the bill of complaint that the grantor in this deed had left a last will and testament wherein he had devised and bequeathed all of his property to certain of his children and heirs to the exclusion of the others — complainants in that suit; that these complainants had also filed a contest of the will of L.G. Ross on the ground of his alleged want of testamentary capacity. Because of the pendency of the will contest the court sustained a demurrer to the bill of complaint, evidently for the reason that it appeared from the allegations thereof that this suit for cancellation of the deed for want of testamentary capacity was prematurely brought inasmuch as the mental capacity of the grantor therein was being contested in another suit by the complainants under an issue of devisavit vel non, and wherefore the court in sustaining the special demurrer declined to dismiss the suit which sought to cancel the deed, but ordered that "said bill is not dismissed, but shall be and is hereby remanded to the files until further orders of this court." Finally during the year 1937 the will contest was heard with the result that the will was held invalid on the ground of the mental incapacity of the said L.G. Ross, who subsequent to publishing and declaring the same had executed the deed in favor of the said J.W. Milner. Thereafter the suit of the complainants to cancel this deed remained in abeyance without being withdrawn from the files until December 11, 1939, when J.J. Milner, who was not a party to the suit but who claims a life estate in the land in controversy under the will of J.W. Milner who had died in the meantime, appeared in court and filed a motion to have the suit reinstated on the active docket and finally dismissed on the ground that the cause, as passed to the files and undisposed of, constituted a cloud upon his life estate in the land involved. Thereupon the court forthwith entered an order upon the motion of the said J.J. Milner, reciting his claim of a life estate in said property and directed the clerk to reinstate the case upon the issue docket of the court, but not dismissing the case by the terms of said order. On that same day the clerk of the court, purporting to act under and pursuant to the said Section 667, Code of 1930, supra, filed his motion to dismiss the cause as a "stale case." The court then entered a further order reciting that there came on to be heard both the motion of the clerk and of J.J. Milner, and directing that the "cause be, and the same is hereby dismissed at the cost of the complainants therein." That is to say, the case was dismissed with prejudice, the order not reciting that it was dismissed without prejudice.
The question presented for decision now is whether or not Section 667, Code of 1930, supra, has any application to a case which has been remanded to the files pending the further order of the court, until after the same is later withdrawn from the files and is placed back on the active docket as a pending case such as may be proceeded with at the instance of a party interested and there had been a failure on the part of the plaintiff or complainant for two terms of the court thereafter to take any step in the cause looking toward the further prosecution thereof. That section provides as follows: "The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant."
It will be noted that the statute does not provide for notice to be given of the clerk's motion to dismiss. The failure to require such notice is evidently because of the fact that the interested parties are presumed to be before the court in cases pending on the active docket and are cognizant of what action is being taken or is proposed to be taken in their cases, and are, therefore, afforded opportunity to show "good cause" to the contrary; but we are of the opinion that it was never contemplated by the statute that the parties to a suit which has been passed to the files until the further order of the court should be required to remain in attendance from day to day and term to term pending such further order in order to show cause why the case should not be finally disposed of in the proposed manner, if and when it is withdrawn from the files, whether the proceedings be civil or criminal.
Until the above mentioned order which withdrew the case from the files and reinstated it on the active docket had been entered, no step was available to be taken by the complainant toward the further prosecution thereof. Moreover, if it be assumed that J.J. Milner who was not a party to the suit was authorized as a party having an interest in the subject matter thereof to procure the reinstatement of the case on the active docket, then it is argued that his action was intended to constitute a very vital step taken in the case immediately prior to the entry of the order dismissing the same as a stale case. If, on the other hand, he was a mere interloper and without a standing in court such as would entitle him to cause the case to be reinstated on the docket for trial or other final disposition, then his motion to docket and dismiss the case was of no avail and the court was limited to a consideration of the motion of the clerk to dismiss the same at a time when the complainants were not advised of its reinstatement on the issue docket. In either event, we are of the opinion that the statute invoked by the clerk as aforesaid has no application under the facts and circumstances hereinbefore mentioned.
It is true that in the case of Du Bois v. Thomas, 173 Miss. 697, 161 So. 868, wherein the cause was reversed on appeal here and remanded, the costs adjudged against the appellee, and upon his failure to pay the costs the appellant filed a motion in this court for an order directing the clerk to file a motion for dismissal under Section 667, Code of 1930, supra, the court held that the statute applies to cases not yet decided. However, in holding that the statute applies only to cases not yet decided the court did not say that it applies to all cases not yet decided. While not strictly analogous, it was held in the criminal case of Gordon v. State, 127 Miss. 396, 90 So. 95, 18 A.L.R. 1150, that an order remanding the case to the files brought an end to the prosecution, but with leave to have the case "withdrawn (from the files) and reinstated for trial at any future term of the court." And in the case of Hall v. Commonwealth, 30 S.W. 877, 17 Ky. Law Rep. 231, annotated in 18 A.L.R. page 1155 in connection with the Gordon case, supra, the liability of the sureties for the amount of bail required on the recognizance for the appearance of the defendant was the question for decision, and the court said in view of the fact that the indictment had been remanded to the files that "If it be true that the indictment in question was filed away as claimed by appellant, then there was no prosecution pending in court at the June term; hence no order forfeiting the bond could be legally made, nor could any judgment be legally rendered upon said bond, and such judgment would be clearly erroneous, if not absolutely void. . . ."
It may be conceded for the purpose of this decision that it was the duty of the complainants to take some step to have the case at bar withdrawn from the files and placed back on the issue docket for trial without unreasonable delay after the will contest had been disposed of, and that upon their failure to do so any party adversely affected thereby would be afforded the remedy of calling the case again to the attention of the court with the view of having it withdrawn from the files and proceeded with to final disposition, nevertheless, we are of the opinion that in such event the case could not then be finally disposed of to the prejudice of the complainants without their being given an opportunity within the meaning of the statute to show good cause why it should not be disposed of in a particular manner, even though the statute does not require that notice be given to the plaintiff or complainant of the clerk's motion under the statute in cases pending on the active docket in which no step has been taken for the two terms preceding.
From the foregoing views it follows that the action of the court below in sustaining the demurrer to the bill of review, which disclosed error apparent on the face of the record was erroneous, and that the cause must be reversed and remanded.
Reversed and remanded.