Green River Lumber Co. v. Pompey Lake Drainage Dist.

Ethridge, J., delivered the opinion of the court. A number of landowners filed a petition in the chancery court praying for the creation of a drainage district to be knokn as the Pompey Lake drainage district, consisting of lands lying in Quitman and. Tunica counties, alleging that they were landowners of the district constituting more than one-third of the landowners owning more than one-half of the land in said district, and publication was made as provided by statute to the landowners to appear before the chancery court to oppose or advocate the creation of such district, and a commissioner was appointed to take evidence and report his finding of law and fact to the court; and he reported to the court that the petition was sufficient and was signed by more than a third of the landowners owning a majority of the lands in said district. Before the cause was heard on its merits the petitioners discovered that they did not own a majority of the land in the district, and circulated a new petition, being the original petition, plus new signers, before the court convened to pass upon the matter, and at the session of the court took a dismissal of the original petition and the proceedings thereunder, and filed the new petition, and had publication made thereunder to the landowners to appear at [699] the date named to show canse in favor of or against the creation of said district. The appellants appeared, and first set up a motion to strike from the present petition the first nine pages thereof on the ground that it consti-. tuted the original petition, and should be remanded to the files in that case, which motion was overruled. They then filed a plea of res ad judicata, setting up that the territory embraced in the present petition was identical with that embraced in the former petition, in which a dismissal was taken, and that such dismissal constituted' an adjudication against the creation of the district. This contention was overruled by the chancellor and an order entered for the creation of the district as prayed for, and from this order this appeal is prosecuted, and the contention made that the former dismissal constituted an adjudication against the contention of the petitioners. We think this plea without merit, and that this case is governed by the decision of this court in Equen et al. v. Arterbury et al., 121 Miss. 76, 83 So. 406, in which case it was decided that a judgment of the court in such case, other than one finally establishing the district, was not res adjudicata. The judgment of the chancery court will therefore be affirmed. Affirmed.