Foster v. Hicks

Mayes, J., delivered tbe opinion of tbe court. Tbe action of tbe court in sustaining tbe petition of Margaret J. Hicks to correct the judgment so as to make it a judgment for her alone, and not in favor of tbe other plaintiffs named in the declaration, who were the children of the deceased, was error, but in no way affected their interest in tbe amount of tbe recovery. Tbe original judgment was entered as it should have been, and there was no mistake, miscalculation, or misrecital in tbe judgment warranting tbe granting of the application under Code 1906, § 1016, to have same corrected. Tbe record shows no error at all. Tbe whole record shows tbat tbe original suit was instituted in tbe name of Margaret J. ITicks, widow of William T. Hicks, deceased, uniting with her in the suit all the children of herself and deceased. Tbe suit was brought under Code 1906, § 721, for the death of William T. Hicks, caused by tbe wrongful and negligent act of tbe Tazoo & Mississippi Valley Railroad Company. In this suit the amount recovered was $2,500. Hnder Code 1906, § 721, which but follows the policy of tbe statutes of this state relative to descent and distribution, all damages recovered for the injury and death of a married man are required to be equally distributed to bis wife and children, if he have a wife and children surviving him, and in this case the deceased had both. It was not necessary to tbe maintenance of tbe suit under Code 1906, § 721 tbat tbe widow should join the children in tbe suit with her; but, if she bad not done so, the damage recovered in a suit brought in her name only would have inured to the benefit of tbe children equally with herself. Therefore, as she could have brought tbe suit in her own name, without the joinder of tbe children, without being able to affect [226] the interest of the children in the recovery, the attempted correction of the judgment by the court, eliminating therefrom the names of the children, could not affect, their interest in it. Under Code 1906, § 721, when the injury results in death, as has already been held by this court, Pickens v. Illinois, etc., R. Co., 92 Miss. 210, 45 South. 868, only one suit can be instituted, and in this suit must be recovered all damage of every kind to any and all parties interested. When tire action is for the deatli of a husband or wife, the section provides that “action may bo brought in the name of widow for the death of the husband, or by the husband for the death of a wife,” etc., ‘fin all parties.interested may join in the suit,” etc.; hut if all parties interested do not join in the suit, and it he conducted in the name of the father or mother alone, or if all parties interested do join in the suit, and there is a recovery, and it be attempted to exclude any of them from their share of the proceeds by having the judgment entered up in the name of the mother or father, to the exclusion of the children, such action cannot affect their right. The statute fixes the interest of all parties, and nothing that the court can do can eliminate their interest. Reversed and remanded.