Davis v. Davis

Mississippi Supreme Court April 15, 1888

Davis v. Davis, 65 Miss. 498 (Miss. 1888)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the Court.

If it be true that W. J. Davis improperly brought his bill, No. 817, in the Chancery Court, that did not justify Hugh L. Davis in bringing his bill, No. 820, for injunction. His proper course was to defend No. 817, whereby he would have obtained all that was properly obtainable by him.

If No. 817 was one too many, No. 820 was the addition of another equally unnecessary and objectionable.

By it the cotton seized was caused to be delivered to Hugh L. Davis, and Wm. J. Davis was enjoined not only from prosecuting suit No. 817, but from bringing any other about the affairs of the plantation until suit No. 765 should be decided.

Certainly such inhibition was unauthorized. No court could deny to him the right to institute suit upon each accrual of. a right of action as often as there was a receipt of annual! rents by H. L. Davis.

The injunction was wrongfully issued. The action of W. J’.. Davis in asking for a continuance of suit No. 820 until the disposition of No. 765 did not prejudice his claim for a dissolution-, of the injunction and for damages.

The disposition of No. 765 by a decree for title and no d'e*504cree for rents did not make the claim for rent res judicata, if the claim might have been adjudicated in that suit. The mere fact that a claim might be propounded in a suit does not make it res judicata, if in fact it was not embraced in it. There is much loose talk on this subject in the books, but the true distinction maybe found set forth in Hubbard v. Flynt, 58 Miss., 266, according to which the plea of res judicata is not available here. All the questions so ably argued by the appellant have been carefully considered by us, and we find no error in the record of which he can complain. Affirmed.

Reference

Full Case Name: Hugh L. Davis v. William J. Davis
Cited By: 11 cases
Status: Published
Syllabus: 1. Chancery Practice. Several suits between same parlies. Injunction. Cause of action. In 1882, W. filed a bill to obtain Ms share of the title to a tract of land which he claimed had been bought by him and H. as equal partners, but which the latter had caused to be deeded to himself individually. While this suit was pending, W. filed another bill against H. to secure his share of the rents of the land referred to for the year 1883. H. then filed a bill against W. to enjoin the prosecution of the latter sMt brought by W. Held, that W. had the right to institute the suit for his share of the rent of 1883, the receipt by H. of rents for that year being the accrual of a new right of action. 2. Same. Suit for injunction ; when necessary. But if the institution by W. of the suit for rent was unnecessary, the suit for injunction by H. was equally unnecessary; the proper course for the latter being to defend the suit for rent, if he wished to oppose it. 3. Same. Continuance. Dissolution of imjunctim, and damages. The fact that W. asked for and obtained a continuance of the injunction suit, until the determination of the suit for title to the land, did not prejudice his right to demand, after the disposition of that case, a dissolution of the injunction and damages. 4. Same. ' Decree far title to land. Suit for rent. Des adjudicala. The final adjudication in W.’s favor of his suit for title, above referred to, without any decree as to the rents of the land accruing after the filing of the bill and before final decree, (he. not having presented any claim thereto), did not make the question of his right to such rents res adjudicate, nor preclude him from the right to recover the same in another suit. 5. Same. Matter that might have been, adjudicated. Whether res adjudicate. A matter is not res adjudicate simply because it might have been, but was not, included in the adjudication of a case disposed of, if in fact it was not presented by the pleadings or necessarily involved therein. Hubbard v. Flynt, 58 Miss., 266, cited.