Russell v. Denson , 98 Miss. 859 ( 1910 )

Mates, O. J.,

delivered the opinion of the court.

Some time in September, 1909, S. D. Bussell- commenced a suit in the chancery court for the purpose of having an alleged title to certain lands quieted and confirmed. It is plain that the proceeding was begun under section 549 of the CSode of 1906, which provides that “the owner in possession of any land, or the owner thereof who may be out of possession, if there be no adverse occupancy thereof, may file a bill in the chancery court to have his title confirmed and quieted,” etc. The bill alleged that the complainant was “the true, legal, and equitable owner of the land, but that the defendant; Denson, is now in possession of the land and claiming to be the owner thereof, ’ ’ etc. It is true that the bill has another prayer, seeldng the cancellation of the title of several adverse claimants, and the claimants are not made parties; but it is clear that the proceeding is under section 549 of the Code, and not 550, the latter section applying to suits to remove clouds, and maintainable by a party out of possession or in possession of the property and against an adverse claimant either in or out of possession. This bill was demurred to on many grounds, both because of-failure to make all interested persons defendants and because of the allegation that the defendant was in possession of the land, etc. The demurrer was heard on the 29th day of July, 1910, and sustained, and after leave so to do complainant declined to amend.. This bill of complaint was then ordered dismissed, and ten days allowed to perfect an appeal to the supreme court. Later on the same day complainant made a motion to vacate the decree dismissing the bill, stating that complainant was under the impression that the bill was filed under section 560' for removing clouds, and that this was the Section complainant intended to invoke by the bill of complaint, but through inadvertence brought the suit under section 549. This motion is accompanied by an affidavit, which substantially sets out the above facts. The motion was overruled on the 30th day of July, whereupon a second and a third motion was made, to the same effect, all’ of which were overruled. After overruling all of the above motions, leave was asked to dismiss the suit without prejudice, and this request was disallowed. From the judgment of the court on various motions an appeal is prosecuted here.

Keeping always in view the fact that the purpose of the organization of courts is to give every citizen an opportunity to fairly litigate his supposed grievances on the merits, and since section 593 of the Code provides that amendments shall be liberally allowed in order to prevent both injustice and delay, we think the court below erred in not allowing complainant to amend and state a cause of action, if he’ could, and, lastly, in not allowing the bill to be dismissed without prejudice. The court is vested with ample power to prevent its processes from being trifled with, but there is nothing in this' record that any such purpose existed on the part of complainant. The court by proper taxation of the cost could have fully protected the defendant from any damage occasioned by the alleged mistake of complainant in "bringing the suit under the wrong section of the Code. No suitor should ever be defeated of a trial on the merits of his cause, except in case of inexcusable neglect.

The decree of the chancellor is reversed, and the cause remanded, with direction to the chancellor to allow complainant to amend, or dismiss the bill without prejudice. So ordered.