Jackson v. Lemler , 83 Miss. 37 ( 1903 )

Tkuly, J.,

delivered the opinion of the court.

The court below erred in sustaining the motion to strike out the amended cross-bill of appellants, because filed without leave, and then refusing leave to file when asked. The decree for foreclosure and sale obtained by the original complainant was only finally decisive of the question therein involved; that is, that he was entitled to the relief prayed for against all the defendants to his bill of complaint. This decree in no manner affected the relative rights of defendants, and was in no sense an a judication of the equities which might exist among themselves. The terms of the decree show that it was not so intended, and it could not have been, because in this case the allegations and cláims upon which the cross-bill of appellants against their codefendant, M. Lemler, was predicated, were not involved in the litigation between original complainant and defendants, had never been placed at issue, were not presented to the court, had not been investigated, and consequently could not have been passed upon or decided. Under section 536, Code 1892, a defendant in a chancery suit may make his answer a cross-bill against any one or all of his codefendants, and may introduce any new matter therein material to his defense, and he shall have process thereon against the defendants to such cross-bills'. Appellants adopted the course pointed out by said section. They filed an answer to the original bill of .complainant, as required by the process of the court, and made that answer a cross-bill against certain of their codefendants, and had process issued thereon as directed by law. This process was duly served upon the defendant to the cross-bill, M. Lemler, citing him to plead, answer, or demur to said cross-bill by a day named. Our statutory provision is that like proceedings shall be had in the case of cross-bills as in other bills. Therefore the cross-bill of appellants became, as to M. Lemler, the defendant therein, an original bill of complaint, subject to the same rules, and upon which like proceedings must be had. The process for Lemler, as defendant to the cross-bill, having been returned executed, it became his duty, under section 549, Code 1892, to plead, answer, or demur to said cross-bill on or before the day named in the process. This Lemler failed to do; contenting himself with answering the original bill of complaint, but ignoring the cross-bill. Upon this failure on the part of Lemler to respond to the process, appellants had the option of adopting any one of three methods of precedure pointed out by the code: Under section 549, they could have taken a decree pro confesso against Lemler, or, under section 537, they could have, by attachment, compelled an answer, or, by complying with section 543, they could amend their bill as of course without applying to the court. Appellants chose the method granted under section 543 — filed their amended cross-bill and had the defendant thereto again served with process. We think this is not only permissible, but tbe proper course to pursue.

The argument that appellants have, in some vague, indefinite way, forfeited their right to amend by their delay in amending, is not maintainable. The doctrine of laches has no application-in a case of this character. Besides, in the particular case, the delay has been on the part of the defendant, and appellants had the right to amend their cross-bill “as of course, without applying to the court, at any time before The defendant had made defense.” The defendant even yet has made no defense, and he cannot be heard to complain that the appellants have taken advantage of the privilege of amendment which his own dila-toriness has granted them.

The position assumed by counsel for appellee, that the appellants are precluded from the assertion of their rights because the decree in favor of the original complainant did not grant the relief asked for in the original cross-bill, is manifestly untenable. A moment’s consideration will show that, under the state of pleadings then existing, no relief could have been granted on the cross-bill. No answer thereto had been filed, no pro confesso taken, and no final decree could have been rightfully rendered. A decree in favor of a complainant against several defendants does not render the relative rights and liabilities of the defendants among themselves res judicata, when such rights are not necessarily involved in the determination of the original cause.

It is urged for appellee that the action of the court below in sustaining the motion striking out appellants’ cross-bill is not properly before this court for review, because the petition for appeal only prays an appeal from the final decree of the court dismissing the cross-bill when filed and considered as an original bill. Appellants duly excepted to the ruling of the court striking out their amended cross-bill, and an appeal from a final decree of a chancery court brings all errors complained of before this court for consideration. A court of chancery should liberally construe its rules governing matters of mere procedure, and not permit them to be converted into a maze wherein the skillful pleader may elude the pursuit of justice.

The question of pleading alone is decided in this appeal.

The pleas of res adjudicate/, and of the statute of limitations; were not properly presented to the court below by the motion to. strike the amended cross-bill from the files. Majors v. Majors, 58 Miss., 806.

The judgment of the court below is reversed, and the cause-remanded. The, amended cross-bill is reinstated upon the files, and the appellee, M. Lemler, granted sixty days from the filing> of the mandate in the court beloiv to plead, answer or demur.