Dean v. Board of Sup'rs

Anderson, J., delivered the opinion of the court. Appellants, S. B. Dean, O. C. Brewer and C. A. Cox, filed their declaration in the circuit court of De Soto county against appellee, the board of supervisors of said pounty, for a writ of mandamus to compel the board to — 278 — issue seventy-five thousand dollars of road bonds of Ya-zoo-Delta continuous highway taxing district, a road district in said county created under chapter' 173 of the Laws of 1916. The cause was tried on pleadings and evidence, and a judgment rendered dismissing appellants’ suit, from which they prosecute this appeal. It is claimed by appellants that this same cause of action between the same parties was before this court in Board of Supervisors v. Dean, 120 Miss. 334, 82 So. 257. In that cause a final judgment was rendered in favor of appellants in this cause, who were appellees in that cause. Appellants contend that the judgment rendered in said former cause is res judicata of the main question involved in this cause. The board of supervisors attack the validity of the organization of the Yazoo-Delta continuous highway taxing district, as well as the road bonds sought to be issued for said district, on several grounds. One of these grounds is that the district is void because there was included within its territorial limits one hundred ninety acres of land in Tate county. Appellants say in answer to this contention that that question is res judicata; that it was necessarily involved and determined adversely to the contention of the board of supervisors in Board of Supervisors v. Dean, supra. Other questions were argued, but we do not consider them of sufficient seriousness to call for a discussion. Suffice it to say that we find no merit in any of the grounds urged by the board of supervisors against the validity of said road district and the bonds sought to be issued therefor, except the contention that the said district is void because it includes within its territorial boundaries one hundred ninety acres of land in another county. That question, in view of what this court held in Borroum v. Purdy Boad District, 131 Miss. 778, 95 So. 677, we think calls for an opinion. The following is the case out of which said question arises: The Yazoo-Delta continuous highway taxing district, a road district of De Soto county, was organized under chapter 173 of the Laws of .1916. The proceedings — 279 — before tlie board of supervisors in the matter of said road district reached a state where it was the duty under the law of the board to issue the bonds of said district for the purpose' of improving the public highways thereof. The board failed and refused to issue the bonds of said district. Thereupon appellants filed their declaration in the circuit court of De Soto county for a writ of mandamus to compel the issuance of said bonds. The board defended said mandamus suit on the ground that the resolutions and orders organizing said road district were illegal for several reasons, and therefore said district was void. But the question whether said district was void because there was included within its territorial limits one hundred ninety acres of land in Tate county was not specifically presented by the' pleadings in said cause and decided by the court, although that fact existed then and could have been presented and determined in said cause. The trial court held said road district to be legal. There was an appeal to this court, in which that judgment was affirmed. The judgment in that cause upheld the validity of said road district, and commanded the board of supervisors to proceed with the issuance of the bonds thereof. Because of unusual conditions growing out of the World War the board of supervisors delayed carrying out the mandate of this court in that cause until November, 1922. Conceiving that under the statute another election was necessary authorizing the issuance of said bonds because more than a year had elapsed since their issuance had been provided for, the board of supervisors, at their November, 1922, meeting, ordered such an election under chapter 270 of the Laws of 1920. The resolutions adopted by the board at that time made full provision for the issuance of seventy-five thousand dollars of bonds of said district as required by law, in the event the election should result in favor of their issuance. Under these orders and resolutions nothing remained to be, done by the board after a favorable election except the issuance — 280 — of the bonds. The election was held and resulted in favor of the issuance of the bonds. Notwithstanding, the board refused to issue said bonds; and thereupon appellants filed this mandamus proceeding for the purpose of requiring the board to proceed with the issuance of said bonds. Where a court has jurisdiction of the subject-matter and parties to a cause, its judgment rendered in such cause is not alone res judicata of the questions actually presented by the pleadings, but all questions necessarily involved and which could have been presented. Lawson v. Shotwell, 27 Miss. 630; Stewart v. Stebbins, 30 Miss. 66; Moody v. Harper, 38 Miss. 599; Hardy v. O’Pry, 102 Miss. 197, 59 So. 73; Vinson v. Colonial & United States Mortgage Co., 116 Miss. 59, 76 So. 827; Sauls v. Freeman, 24 Fla. 209, 4 So. 525,12 Am. St. Rep. 190. In Lawson v. Shotwell, supra, the court held that, where a divorce had been granted, a suit could not afterwards be brought by the wife for alimony; that alimony should have been determined in the divorce suit, and the failure of the wife to cause such an adjudication was her fault, and a bar to her claim for alimony in another suit. In discussing the question the court said, among other things: ■“Matters which appropriately belong to the case in the circuit court, and which might, by ordinary diligence, har/e been embraced in its decree or final action, ought not, upon principles of policy, to be again litigated between the same parties in another court. It is no answer to say that the matters were not put in issue. Why were they not in issue? Is a party to be harassed, and taxed with the costs of two suits in succession, and in different courts, when the law says one. shall be sufficient? Hutch. Code, 496, section 7. This leaves, out of view that wholesome rule of equity which discountenances a multiplicity of suits, touching matters which can be as well adjusted by one action. The rule is one of policy, intended — 281 — to protect innocent persons against frivolous and unnecessary litigation; and if, occasionally, under its operation, there should be a' failure of justice, in consequence of the laches of one of the parties, it is better that it should be so, than that the utility of the rule itself should be in the least impaired. The public have an interest in its preservation, and the individual suitor can only complain of his own negligence, if justice should fail in his particular case, and not of the harsh operation of the •rule. ” In Stewart v. Stebbins, supra, the court held that all that might have been tried in the first suit is concluded by the decree therein unless the failure to litigate the right in question was caused by the fraud of the opposite party, and is not attributable to the negligence of complaining party. And in Moody v. Harper, supra, it was held that, if defendant in an-action of ejectment or in an action for mesne profits failed without sufficient excuse to set up his claim for valuable improvements, he could not afterwards come into equity for relief on that account. The supreme court of Florida in Sauls v. Freeman, 24 Fla. 223, 4 So. 531, 12 Am. St. Rep. 190, .in discussing a like question, said: “If the judgment in mandamus was not as effectual upon the principle of res adjudícala, against the inhabitants of the county as it is against the county commissioners, there would be no end to litigation in such cases or in any cases against county officials as such. . . . The award of the peremptory writ adjudicated the legality of the petition in all respects and settled the question of the duty of the commissioners to call the election. . . . This bill seems to open again what had alr'eadv been adjudicated. In Cromwell v. County of Sac, 94 U. S. 351, speaking of the effect of a former judgment on the same claim, it is said that it, ‘if rendered on the merits, constitutes an absolute bar to a subsequent action. It is a-finality as to the claim or demand in controversy, — 282 — concluding parties and those in privity with them not only as to every matter which was offered and received to sustain or defeat the'claim or demand, hut as to any other admissible matter which might have been offered for that purpose.’ ” In the former mandamus suit there was a court with jurisdiction of the subject-matter and the parties which rendered a final judgment adjudicating that the said Yazoo-Delta continuous highway taxing district was valid. The fact of said district containing one hundred ninety acres of land in Tate county and the effect thereof on the validity of the district, it is true, was not presented by the pleadings nor discussed in the opinion in said cause, but in passing on the question whether the said road district was void the court necessarily passed on every question which could have been urged in that case against its legality, whether such question was specifically presented and argued or not. It is contended, however, on behalf of the board of supervisors, that, under the holding of this court in Borroum v. Purdy Road District, supra, the said road district is absolutely void, and therefore the fact that this court in the former mandamus suit between these parties adjudged said district to be valid has no binding force, and is to be ignored. In other words, the holding of the court in the Borroum Case, and in said former mandamus suit between these parties, cannot stand together; that the principle of res judicata has no application under such circumstances. The Borroum Case was a proceeding under chapter 28 of Laws Ex. Sess. 1917 to validate road bonds. Although the court held in that case that, where the record recites the jurisdictional facts, the order of the board of supervisors has all the effect of a court of general jurisdiction, and cannot be attached except by direct appeal, nevertheless, where the board exceeds its territorial jurisdiction by including lands in a road district which lie in another state, the orders and resolutions creating the district are void, and the fact of the inclusion in the dis — 283 — trict of territory beyond the borders of the state could be shown by parol testimony. Under this case, if this question had been raised in the former mandamus suit the road district here involved should have been held to be void; and clearly it was necessarily involved and could have been raised. The exact point is: Does the fact that the board of supervisors did not have jurisdiction of this one hundred ninety acres of land in Tate county render the whole judgment in said former suit void and entitle the board to relitigate that question in this court? We think not. The court had jurisdiction of the parties and of all the subject-matter involved except this one hundred ninety acres of land. The balance of the subject-matter of said litigation, namely, all of said road district situated in De Soto county, the board had jurisdiction of. In that cause a valid organization of said road district containing alone the lands in De Soto county could have taken place. We hold that under the principles of res judicata all the questions involved in'a cause and necessarily decided are concluded as between parties and privies except in so far as the judgment rendered may have been beyond the power of the court. Certainly in the former mandamus suit between these parties a valid judgment could have been rendered as to all the lands in De Soto county. And so in the Borroum Case a valid, judgment on proper proceedings could have been rendered as to all the lands there involved except those in the state of Tennessee. The one hundred ninety acres of land in Tate county is no part of this district simply because it was beyond the jurisdiction of the board of supervisors. In -the Borroum Case, if this court had held that the road district there involved was legal, the lands in the state of Tennessee included within said district in carrying out the judgment of the court would simply have been ignored on the ground that they were beyond the jurisdiction of the board of supervisors. The former judgment is the law of this case, right or wrong. The court had juris — 284 — diction of the parties and the subject-matter, and in this case we have the same parties and the same cause growing out of the same subject-matter, and the same question necessarily involved and decided in the other cause. As said by the supreme court of the United States in Jeter v. Hewitt, 22 How. (63 U. S.) 352 (16 L. Ed. 345): “Res judicata renders white that which is black, and straight that which is crooked.” Reversed, and judgment here for appellants. Reversed.