Newton Oil & Manufacturing Co. v. Sessum , 102 Miss. 181 ( 1912 )

Cook, J.,

delivered the opinion of the court.

This case is the case of Williamson v. Telephone Co., 57 South. 559, with the parties in interest transposed, in the Williamson case the telephone company was threatened with a multitude of suits, while in the instant case a multitude of parties claiming damages against the. Newton Oil & Manufacturing Company filed their joint bill in the chancery court against appellant to avoid a multiplicity of suits. The bill alleges that appellant sold to each of the complainants, at different times, certain fertilizers guaranteed to contain certain elements necessary to the fertilization of the soil, that the fertilizer did not come' up to the guaranty, and each complainant prayed for damages in varying amounts, and also for the penalty imposed by section 2256 of the Code of 1906. To this a demurrer was interposed, and overruled.

The chancellor should have sustained the demurrer and dismissed the bill. It is contended by appellees that, the chancellor having assumed jurisdiction of the case, although it may be conceded that the equity court did not have jurisdiction, this court should not reverse the chancellor, citing section 147 of the Constitution in support of their position. The decision of the chancellor was not an ‘ ‘ error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction.” Neither the common-law or equity court had jurisdiction of the cause of action as presented by the bill, and a demurrer should have been sustained in either court. The rights and remedies of the complainants were entirely separate, independent, and distinct, and in no court could they maintain a joint cause of action. This is more than a misjoinder of parties. It also is a misjoinder, of causes of action.

If one of the complainants had filed his bill in the chancery court, alleging the same cause of action, and praying for the same relief sought by this bill, and the court had assumed jurisdiction in mistake of its jurisdiction, then we would have a case which properly belonged to a law court, and this court would not reverse for the mistake, if this should be the only error in the record. Indeed, the point made by appellees has been decided by this court. We do not think, with counsel, that it was unnecessary to decide this question in the decision to which reference is made; but it was directly before the court, then as now, and the court then said: “No question as to mistake of jurisdiction between courts of law and chancery, within the contemplation of section 147 of our Constitution, arises in this ease; for if we had only one forum, armed with full power to administer all remedial justice, joinder of all these parties in one action would not be admissible. Bliss on Code Pleading. This author says, in section 76: ‘Two or more owners of mills propelled by water are interested in preventing an obstruction above that shall interfere with the down-flow of the water, and may unite to restrain or abate it as a nuisance; but they cannot, hence, unite in an action for damages, for, as to the injury suffered, there is no community of interest. There is no more a common interest than though a carrier had, at one time, carelessly destroyed property belonging to different persons, or the-lives of different passengers.’ ” Tribette v. Railroad Co., 70 Miss. 192, 12 South. 34, 19 L. R. A. 660, 355 Am. St. Rep. 642.

Reversed, and bill dismissed.