Weathersby v. Pearl River Lumber Co.

41 So. 65, 88 Miss. 535

• Court: Mississippi Supreme Court
• Decided: April 15, 1906
• Status: Published

Opinion

Cabhoon, J.,

delivered the opinion of the court.

This suit was first brought in the year 1900, when the bill was demurred to because (1) there was no equity on its face; (2) failure to deraign title; (3) no title shown in complainant; .(4) bill shows title in defendant; (5) bill fails to show any redemption by complainant of the land sold for taxes. This demurrer was sustained on September 20, 1900, the decree being in the following words: “This cause having been set down for hearing on bill and demurrer, it is ordered by consent that the demurrer be sustained and the bill dismissed, and that complainant have sixty days in which to file amended bill, if he so desires.” There the litigation ended; no amended bill ever having been filed, or sought to be filed. That decree was a final adjudication of what was pleaded, or might properly have been pleaded, in the bill in that cause. 24 Ency. Law and Procedure, 714; Phillips v. Wormley, 58 Miss., 398; Straw v. Illinois, etc., R. R. Co., 73 Miss., 446 (s.c., 18 South. Rep., 847). The present new bill, filed nearly five years afterwards, cannot be supported on the ground that the demurrer to the former one might possibly have been sustained only because it did not deraign title or show complainant’s privity with the title. The decree does not so adjudge, and no amendment was offered.

Affirmed. .