Gulf Refining Co. v. Harrison

28 So. 2d 221, 201 Miss. 294, 1946 Miss. LEXIS 359

Opinions

The heirs and devisees of George Calvert deceased file their motion asking in the alternative (1) dismissal of the appeal, or (2) substitution as appellees.

Calvert died during the hearing upon a bill filed by appellant to confirm title as against appellees. This fact was unknown to the parties or to the court until after final decree.

We have examined the several answers to the motion, which contend for a diversity of procedures. We are of the opinion that Calvert was not a necessary party to appellant's suit; that his interests were not involved therein. It is true, in the cross-bills filed with answers, some defendants asserted claims whose establishment could have affected Calvert's interest as well as appellants.

We see no reason to dismiss the entire appeal. The decree, insofar as it may be construed to affect the Calvert interest, was favorable thereto. It was not absolutely void as to the other parties, and was at most only voidable or erroneous as to Calvert. Streeter v. Chicago Title Trust Co., D.C.,14 F.2d 331; Christian, etc., Company v. Dantzler Lbr. Co., 78 Miss. 74, 28 So. 788. Compare McKey v. Torry, 28 Miss. 78. 30 Am. Jur., Judgments, Sec. 38, p. 838. The trial court had acquired jurisdiction of the subject matter, and of the persons of the joint complainants and joint defendants. Without knowledge of any of the parties or the court, Calvert died shortly prior to final decree.

In our opinion, a just and practicable rule, endorsed by modern decisions (Am. Jur., ubi supra), and comporting with an orderly procedure, requires that the motion to dismiss the appeal be overruled. The alternative relief of revivor by the Calvert heirs is granted so as to allow them to retain oversight over their interests throughout the appeal upon its merits.

So ordered.

Sydney Smith, C.J., did not participate in this decision.