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A. B. JOHNSON v. ANNIE MAE FRANKLIN

DECEMBER 11, 1985

A. B. JOHNSON
v.
ANNIE MAE FRANKLIN



BEFORE PATTERSON, C.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal presents generally the question of what pleading and service is required of a defendant in a multi-party civil action before she may obtain relief of and from a codefendant. The appeal arises in the context of a partition suit wherein one of the defendants herself claimed for partition but never served a cross-claim upon her co-defendants. The trial judge allowed this "cross-claimant" to proceed as though the issues presented in her claim were triable in the then existing state of the pleadings. Because we construe our rules of civil practice to require in such circumstances the prior service of a cross-claim, which demands relief of and from cross-defendant, we reverse.

 II.

 On January 13, 1983, James G. Anderson filed in the Chancery Court of the First Judicial District of Chickasaw County, Mississippi, a partition action with respect to the following described property located and situated in the First Judicial District of Chickasaw County, Mississippi, to-wit:

 The Northeast Quarter of Section 15, Township 13, Range 4 East, Chickasaw County, Mississippi, LESS AND EXCEPT twenty (20) acres, more or less, being the North Half of the Northwest Quarter of the Northeast Quarter of Section 15, Township 13, Range 4 East.

 On June 17, 1983, Anderson filed an amended complaint for partition alleging there that he and sixteen others owned the land as tenants in common. Anderson caused to be served all sixteen defendants including the unknown heirs of three other parties. Among the Defendants so named were A. B. Johnson, the Appellant here, and Annie Mae Franklin, the Appellee,

 here.

 On July 27, 1983, Appellant A. B. Johnson and fifteen others filed an answer asserting, inter alia, that Anderson had no legal or equitable interest in the property in question and denying the right of James G. Anderson to partition.

 On August 22, 1983, Annie Franklin, Appellee here, entered her appearance and filed her separate answer and included therein an "Affirmative Matter and Claim" . In her claim Franklin alleges that she owns an undivided one-eighth interest in the property and

 asks for the partition of said property and for her pro rata share of the sale derived therefrom.

 Significantly, neither A. B. Johnson nor any of the other defendants are named cross-defendants in this pleading. No relief is expressly demanded of and from them. Furthermore, the certificate of service by Franklin's attorney reflects service upon James G. Anderson, the original plaintiff, by service upon his attorney. The certificate fails to reflect any service upon Johnson or his counsel.

 In this state of the pleadings, the matter went to trial where a substantial dispute developed between Johnson and Franklin as to whether Franklin owned an interest in the property. Annie Mae Franklin claims an undivided one-sixteenth interest in the property as follows: Elsie Franklin owned an undivided one-eighth interest. Elsie Franklin was married to Emmitt Franklin at the time Elsie Franklin died intestate. Surviving her was a daughter by a previous marriage, and her husband, Emmitt Franklin. He, accordingly, acquired via descent and distribution half the interest of Elsie Franklin. Emmitt Franklin thereafter married Annie Mae Franklin and by virtue of Emmitt Franklin's death intestate, without other heirs, Annie Mae Franklin inherited the undivided one-sixteenth interest.

 A. B. Johnson claims that during his lifetime Emmitt Franklin conveyed his interest in the property to A. B. Johnson via a quitclaim deed. Accordingly, under Johnson's theory there was nothing for Annie Mae Franklin to inherit at ...


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