Middleton v. Davis

62 So. 164, 105 Miss. 152

Opinion

Reed, J.,

delivered the opinion of the court.

This case was before this court on a former appeal, the style of the case then being R. J. and H. B. Davis v. Lucina G. Bellows, and is reported in 99 Miss. 838, 56 South. 174. After the case was remanded, Mrs. Bellows died, and it was revived in the name of the administrator of her estate. The present appeal is from the action of the chancery court in refusing to permit the filing of .an amended answer and cross-bill, which it is claimed tendered new issues in the case, in addition to those already before the court. The following from the bill of exceptions states the reason why the chancellor would not permit the filing of the amended answer and cross-bill: “The chancellor stated and held that he was precluded by the decision and opinion of the supreme court from entering any other than a final decree for complainants, and felt that he had no discretion to permit any further hearing, or to grant any of the relief sought by the amended answer and cross-bill, or to allow the same to be filed.”

An inspection of the former opinion in this case (Davis v. Bellows, supra) shows that it consisted of a construe tion of the contract for the sale of timber between Mrs. Bellows and Messrs. Davis. In the original bill the complainants, appellees in this appeal, claimed that they were the owners, under the contract of sale, of all the timber on the land, and that they should have sufficient time after January 1, 1908, the date named in the contract when the time for the removal of the timber should end, in which to go upon the land and cut and remove all of it. They further prayed that, if the court should hold that the contract should not be enforced after January 1,1908, then the sum of three thousand, two hundred dollars, which, under the terms of the contract, was to be used in payment of 2,560,000 feet of the last of the merchantable timber cut or uncut on the premises, should be returned to them, together with interest thereon. Mrs. Bellows claimed that their right to cut and remove timber ceased on January 1, 1908, and denied the right of complainants to have returned to them the sum of three thousand, two hundred dollars. The chancery court found in favor of Mrs. Bellows. This court decided that the contract terminated on January 1,1908, and that Mrs. Bellows had the right to stop the cutting of the timber and to put Messrs. Davis off the premises then; that “the three thousand, two hundred dollars paid to appellee at the date of the contract constituted no payment for the timber, in the sense that it became absolutely the money of appellee, whether appellants cut the timber or not; but it was left with her as a mere advance payment or security, for timber which appellants expected to cut and pay for at the rate of one dollar and twenty-five cents per thousand feet, and which, if they did not cut, certainly obligated Mrs. Bellows to return the advance payment to them. ’ ’ The last paragraph in the opinion reads as follows: This case is reversed and remanded, with instruction to the trial court to have an accounting between appellants and appellee. If it shall appear that the appellants are due appellee any sum for timber cut by them before January 1, 1908, and not paid for, then the court shall decree that the appellee shall deduct so' much from the three thousand, two hundred dollars as is necessary to pay for the timber cut by appellants and not paid for, giving a decree in favor of appellants for the balance; and if it shall appear that appellants have paid all that they owe to appellee, then appellants shall have a decree for the whole sum, and the court shall make any sum found due appellants a charge on the timber in question.” The mandate of the court states that the decree of the chancery court from which the appeal was taken was reversed, and the cause remanded, and, quoting from the mandate, says: “That such execution and further proceedings be had in said cause as according to right and justice, the judgment of our supreme court, and the law of the land ought to be had.” This is the usual form of mandate where a case is reversed and remanded.

After the case was returned to the chancery court, Mrs. Bellows made application to the court for leave to file an amended answer and cross-bill. The answer offered contains a general statement of the case and the litigation between the parties, including the original agreement for sale of the timber, the several agreements between counsel while the case was pending in the chancery court, the opinion of this court, a further statement of the facts connected with the item of three thousand, two hundred dollars in dispute, denying the indebtedness thereof, and admitting the allegations of the original bill of complaint which were not expressly denied in the amended answer offered, and withdrawing the allegation in her former answers. In her cross-bill filed, together with the answer, she claims'damages by reason of the failure of appellees to cut all the timber within the time, and as specified by the contract. She claims that the timber was sold at the low price of one dollar and twenty-five cents per thousand upon the understanding that all of the timber, that which was composed of the higher grades, like ash, cypress, and hickory, and that of the lower grades, like gum and loblolly pine, and which entire amount of timber was estimated to be fifteen million feet, was to be cut and taken from the land, and that, instead of cutting the timber as it was reached, they moved from place to place, culled the timber, cutting only the choicest trees, selecting the kind required for their immediate use, and leaving the undesirable varieties standing; that this was in violation of the contract, and greatly injured her, because, as shown by all of the pleadings in the case, including correspondence with appellees, she desired to clear the land, in order that it might be turned into a farm or plantation, and that this was the reason for her making the special contract for sale of the timber; that the land was not cleared as she desired, but that the trees so left standing and the condition in which the land was left at the time of the termination of the contract rendered it additionally expensive to properly clear the land. She also claims damages arising from the interference with her use of the land, and she claims the right to recover the full value of the timber felled prior to January 1, 1908, and remaining on the land at that date. She alleges that under the contract as construed the timber then belonged to her, that it was then worth more than one dollar and twenty-five cents per thousand feet, and not less than three dollars per thousand feet. She bases this claim, too, upon the stipulations in an agreement made during the pendency of the litigation, by which appellees were to take certain timber which they felled and pay one dollar and twenty-five cents per thousand therefor for the purpose of preserving the property, and in which agreement is this further provision: “And if the court shall hold that the defendant was, prior to the making of this agreement, the owner of said logs, then she is not to be precluded from asserting any claim she may have as to the actual value there of in excess of one dollar and twenty-five cents per thousand.” She claims the right to set off the amount shown to be due her by appellees for breaches of the contract against the sum of three thousand, two hundred dollars, if, upon a further hearing, the court should decree the payment by her of such sum. She also claims a lien oh the sawmill belonging to appellees on the premises.

The question for our decision is whether the court should have permitted appellant to file the amended answer and cross-bill. It will he noted that the court, in its opinion reversing and remanding the case upon the former appeal, instructed the trial court to have an account between the parties, and it appears from the further words in the opinion that this accounting was in a measure limited. However, it will also be noted that the mandate, which is the decree of this court, simply reversed and remanded the case for further proceedings.

After quoting at length from the opinion in the former appeal, counsel for appellee in his brief says: ‘£ This was. a final adjudication of the matter in controversy, and the case was- remanded only for an accounting, to be worked out on the basis of the decision. The decision became and was ‘the law of the case’ and the question now sought to be re-litigated became res adjudicata, within the authorities cited.” We fully recognize the importance of the doctrine of res adjudicata. The judgment of this court is res adjudicata of the case, as then presented to the court, in any further hearing thereof in the lower court; but it will not extend to include a case which may be made different from that decided by new pleadings and new evidence. The former judgment will control the case to the extent that it is the same, presenting the same facts and same questions for decision as the case in which it was rendered.

We find that the law relating to the power of the lower court to allow amendments to the pleadings is fully and clearly presented in the case of Haines v. Haines, 98 , 54 South. 433. We make the following quotation from the opinion delivered by Judge Smith: “When a judgment or decree appealed from is by this court reversed and remanded to the trial court, such court has full power to allow any amendment to be made to the pleadings which it had power to allow before the judgment or decree appealed from was rendered. The remanding of a case to the trial court is for the purpose of having it tried de novo, and such a court has the same power to allow amendments to the pleadings, when 'a cause is remanded with directions to enter a judgment or decree in accordance with the opinion of this court,, that it has when a cause is remanded without any such direction. If on the trial in the court below the pleadings and proof present the same case that was before this court on the appeal, the judgment or decree of the court should be in accordance with the directions given it by this court; but, should the pleadings and proof then present a different case, the judgment or decree should be made to conform thereto” — citing Wailes v. Cooper, 25 Miss. 421; Hanserd v. Gray, 46 Miss. 75; Taylor v. Wright, 54 Miss. 722; Canning Co. v. Ott, 88 Miss. 771, 41 South. 378.

The first decision in the case of Haines v. Haines is reported in 90 Miss. 100, 43 South. 465. It seems that a bill was filed by certain parties asserting title to property as heirs of Caleb Haines, and alleging that Lucy Haines, their mother, was the lawful wife of Caleb. The court in the first opinion decided that Lucy was not the legal wife of Caleb, and against her children. At the end of the opinion the court reversed the case, using the following words: “The decree is reversed, and the cause remanded for decree in accordance with this opinion.” When the case was returned to the chancery court, an amended bill was filed, in which it was alleged that Caleb and Lucy were tenants in common of part of the land in controversy, each owning an undivided half interest therein, and that Lucy’s children, the complainants in the original case, were the owners of a half interest inherited by them from their mother. A plea of res ad judicata was filed to this amended bill. This plea was adjudged insufficient by the chancery court, and the action of that court was affirmed by this court. It was decided that the chancellor had full power to try the cause de novo, and to allow any proper amendments to be made to the pleadings.

In the case of Wailes v. Johnson, 25 Miss. 421, Judge Yerger, delivering the opinion of the court said: “By the decree remanding the cause and directing a foreclosure of the mortgage in the chancery court, we did not intend to take away the power, which belongs to the chancellor, of allowing amendments in the pleadings, or to make such other orders in the case as the equity and right of the case may demand, and the rules of practice in the chancery court allow. This power the chancellor now has, as fully in this case as in any other pending in that court. The only effect of our mandate is to require him, upon the state of the:pleadings and proof remaining the same as it was when decided by the high court, to render the decree directed by the mandate.’ ’

We note that the first hearing of this case was on the pleadings, exhibits, writings, and arguments between counsel, and no testimony of witnesses was introduced. It seems to have been in the contemplation of the parties that there should first be a construction of the contract. This court’s decision of the case as then presented in the record was, in effect, a construction of the contract. The case was then returned to the lower court for further proceedings. A trial de novo could then have been had. The chancellor had the power to so proceed. He should, for Ms guidance, have given proper consideration to the opinion- of this court touching the construction of the contract and such other matters as were decided. At the time, if there were any rights or claims between the par ties which had not appeared until the opinion was rendered, or which were presented in a different aspect thereby, these he should have permitted to be litigated. In short, all rights, claims, or liabilities arising out of the contract should be fully adjudicated and settled before the cause is finally closed in the court. To this end, the court should have permitted the filing of the amended pleadings, so that unsettled controversies could have been presented for hearing in an orderly manner, and the claims of appellant which had not been adjudicated could have been clearly set forth.

It is contended that no new facts were stated in the amended pleadings, and that there were all contained in the original pleadings. It would require a painstaking inspection of the record to ascertain whether all of the facts stated in the amended answer and cross-bill are included in the original pleadings, with exhibits. These are voluminous. But we do know that they are in the new pleadings in a very different order and for a different purpose. Some of the facts may appear, incidentally, in an answer or exhibit in the original pleadings; but now they are arranged and pleaded affirmatively for relief by appellant. This court in its former opinion put a construction on the contract different from that contended by either of the parties. There is now a new phase to the case. It is therefore, a convenience to the court, and should aid it in arriving at an equitable decision, for the facts to be restated and reshaped, so that appellant’s defenses and contentions might be clearly presented at the new hearing. There can be no objection that the amended pleadings set out more explicitly the various defenses. It is our belief that new defenses and contentions were presented to the court by appellant’s amended answer and cross-bill, and new and distinct issues offered. We are not in any manner expressing any views as to the sufficiency of any defense which appellant makes; but, viewing the whole case, we now decide that the chancellor should have permitted the filing of the amended answer and cross-bill.

Reversed and remanded.