Armistead v. Barber

82 Miss. 788

Opinion

Calhoon, J.,

delivered the opinion of the court.

There is an appeal from a decree sustaining a demurrer to a bill of review and dismissing the bill, and the court was right in sustaining the demurrer on some of the grounds. The bill does not, as it should do, set forth the interests of all the parties; it does not, as it should do, join as parties some who were parties to the proceedings sought to be reviewed, nor give any reason for their nonjoinder; and it does not, as it should do, show why persons who are not parties to the original proceedings are made defendants to it. We expressly decline now to decide the other questions raised on the demurrer. Inasmuch as the rights of minors are involved, who aver that no process was served on them, and since there may be merit in their claim, my associates hold that the court erred in dismissing the bill, notwithstanding no leave was ashed to amend. I yield to their opinion, but do so doubtingly, even in the face of Kimbrough v. Curtis, 50 Miss., 122, and Hiller v. Cotton, 48 Miss., 593. See 6 Enc. Pl. & Pr., 428.

Reversed and remanded, with leave to complainants bo amend their bill as they see fit; but the costs of the appeal are taxed on the appellants.