Armistead v. Barber

Mississippi Supreme Court
Armistead v. Barber, 82 Miss. 788 (Miss. 1903)
Calhoon

Armistead v. Barber

Opinion of the Court

Calhoon, J.,

delivered the opinion of the court.

There is an appeal from a decree sustaining a demurrer to a bill of review and dismissing the bill, and the court was right in sustaining the demurrer on some of the grounds. The bill does not, as it should do, set forth the interests of all the parties; it does not, as it should do, join as parties some who were parties to the proceedings sought to be reviewed, nor give any reason for their nonjoinder; and it does not, as it should do, *793show why persons who are not parties to the original proceedings are made defendants to it. We expressly decline now to decide the other questions raised on the demurrer. Inasmuch as the rights of minors are involved, who aver that no process was served on them, and since there may be merit in their claim, my associates hold that the court erred in dismissing the bill, notwithstanding no leave was ashed to amend. I yield to their opinion, but do so doubtingly, even in the face of Kimbrough v. Curtis, 50 Miss., 122, and Hiller v. Cotton, 48 Miss., 593. See 6 Enc. Pl. & Pr., 428.

Reversed and remanded, with leave to complainants bo amend their bill as they see fit; but the costs of the appeal are taxed on the appellants.

Reference

Full Case Name
Charles B. Armistead v. Isaac J. Barber
Cited By
1 case
Status
Published
Syllabus
1. Chancery. Bill of review. Interest of litigants. Parties. Misjoinder. Non-joinder. A bill in equity seeking to review tb'e proceedings and decrees in a partition suit should— (a) Set forth tbe interest of all tbe parties; (b) Join all tbe parties to tbe original suit or show tbe facts justifying tbeir nonjoinder; and' (c) Show tbe facts justifying tbe joinder of persons not parties to tbe original suit, if any be joined. Same. Infants. -Amendments. Where some of the parties seeking relief by a bill of review are infants and were defendants to the original suit, and it be charged that they were not served with process therein, it will be error upon sustaining a demurrer to the hill to' dismiss the same without granting leave to amend, although such leave was not asked.