Davis v. Davis

65 Miss. 498

• Court: Mississippi Supreme Court
• Decided: April 15, 1888
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the Court.

If it be true that W. J. Davis improperly brought his bill, No. 817, in the Chancery Court, that did not justify Hugh L. Davis in bringing his bill, No. 820, for injunction. His proper course was to defend No. 817, whereby he would have obtained all that was properly obtainable by him.

If No. 817 was one too many, No. 820 was the addition of another equally unnecessary and objectionable.

By it the cotton seized was caused to be delivered to Hugh L. Davis, and Wm. J. Davis was enjoined not only from prosecuting suit No. 817, but from bringing any other about the affairs of the plantation until suit No. 765 should be decided.

Certainly such inhibition was unauthorized. No court could deny to him the right to institute suit upon each accrual of. a right of action as often as there was a receipt of annual! rents by H. L. Davis.

The injunction was wrongfully issued. The action of W. J’.. Davis in asking for a continuance of suit No. 820 until the disposition of No. 765 did not prejudice his claim for a dissolution-, of the injunction and for damages.

The disposition of No. 765 by a decree for title and no d'ecree for rents did not make the claim for rent res judicata, if the claim might have been adjudicated in that suit. The mere fact that a claim might be propounded in a suit does not make it res judicata, if in fact it was not embraced in it. There is much loose talk on this subject in the books, but the true distinction maybe found set forth in Hubbard v. Flynt, 58 Miss., 266, according to which the plea of res judicata is not available here. All the questions so ably argued by the appellant have been carefully considered by us, and we find no error in the record of which he can complain. Affirmed.