Anderson v. McInnis

• Decision Date: 19 June 1911
• Docket Number: 15,300
• Citation: 56 So. 170,99 Miss. 823
• Court: Mississippi Supreme Court
• Parties: A. D. ANDERSON v. H. MCINNIS ET AL

56 So. 170

99 Miss. 823

A. D. ANDERSON v. H. MCINNIS ET AL

No. 15,300

Supreme Court of Mississippi

June 19, 1911

APPEAL from the chancery court of Jones county, HON. SAMUEL WHITMAN JR., Chancellor.

Suit by H. McInnis et al. against A. D. Anderson. From a decree amending a final decree rendered in vacation, defendant appeals.

The facts are as follows:

The case was heard by agreement in vacation, and the chancellor outlined his opinion to counsel, who prepared a decree and sent it to the chancellor for signature. It was duly signed by the chancellor and placed of record by the clerk in the minutes of the court. At the next term of the court, the appellees here, who were complanants in the court below filed the following motion: "Now come the complainants in the above-styled cause and move the court to modify the decree entered in vacation in the above-styled cause, and for grounds for said motion say that the decree as entered on the vacation minutes does not represent the true decree of the court, in that, in the decree as entered on the minutes defndant, A. D. Anderson, is given credit for one hundred dollars for four houses, which he claims that plaintiff sold to him, but which he did not get, when as a matter of fact the chancellor did not intend to give Anderson, the defendant herein, credit for the said one hundred dollars, and that the amount given by said decree to complainants should be increased by the sum of one hundred dollars." The chancellor modified the vacation decree in compliance with the prayer of said motion, and from this decree an appeal is taken.

Reversed and remanded.

Hardy and Arnold, for appellant.

This decree having been signed and entered on the minutes of the court, the situation was the same as though it had been entered in term time and the court adjourned and the court had attempted at a subsequent term to enter an order amending the decree rendered in the cause. When the court has adjourned its power of judgments and decrees cease. Railway Co. v. Bolding, 69 Miss. 255; Arthur v Adams, 49 Miss. 404; Wiggle v. Owen, 45 Miss. 691.

This decree had the same effect and force as if made in term time and the court had no power or authority to disturb it.

As decisive of this matter we submit that the case of Ex parte Stanfield, 53 So. 538, settles the question. In this case this court in passing on the identical question here presented said: "By the very terms of the statute itself such decrees are final, and the remedy of the complaining party is by appeal. They are not vacation decrees which must be approved in term time, like the clerk's order at rules. All final decrees made in term time remain in the breast of the chancellor until the adjournment, and may be amended or vacated at any time during the term, but not afterwards. Final decrees made in vacation, where authorized by law, when signed by the chancellor and delivered to the clerk to be entered, are beyond recall, and stand as if made during a term of court, and the court had adjourned." We submit that the case last cited above settles this question. The chancellor signed the decree and it was delivered to the clerk to be entered and was entered. There the power of the chancellor ended. He had no power or authority to do anything with the decree whatever. In assuming to act, his action was absolutely void. Then, we further submit that even had the court had any authority to do any act that he would have had no power to do so without giving notice to the appellant.

We think that the decree rendered on January 3, 1911, in this cause was void and of no effect and that the same should be vacated and set aside and the original decree rendered on the 28th day of August, A. D. 1910, should be reinstated as the decree in this cause and if the appellee has any complaint of that decree his remedy is by appeal from it.

For these reasons we submit that this cause should be reversed and said decree of August 28, 1910, reinstated and the decree of January 3, 1911, vacated.

Deavours & Shands, for appellees.

In the outset, we desire to call to the court's attention the fact that this is not a case where the court, at a subsequent term, attempted to modify or change a decree rendered in vacation, because the chancellor changed his mind in regard to the merits of the case. For the purpose of this argument and for that purpose only, we concede that the chancellor, after he renders a final decree in vacation; has no right to change that decree at a subsequent term of the court; but in this case, the court never rendered but one decree, but the chancellor inadvertently signed a decree which did not embody the true decree of the court; that is, that two decrees were presented to him and through a mistake of fact, he signed the wrong decree; that is, a mistake of fact as to the paper signed by him, and not as to the facts of the case. When the chancellor realized that he had made this mistake, on motion of appeals herein, he simply directed that the decree as entered on the vacation minutes, be modified so as to conform to the decree which he had directed solicitors for the appellant to prepare.

We call to the court's attention that on the motion, no evidence was introduced in regard to the facts of the case; no further testimony of any kind was taken in regard to that, nor was additional authorities of law cited by counsel, but the motion was purely and simply for the court to have entered on the minutes, the true decree of the court, being the decree that the chancellor intended to sign, and which he thought he had signed.

We do not think that the cases of Railway Company v Bowling, 69 Miss. 255; Arthur v. Adams, 49 Miss. 404; Wiggle v. Owen, 45 Miss. 691, are in point, for in all of these cases, judgment or decree was rendered in term time. And at a subsequent term of the court, effort was made to have the court change the decree rendered at the preceding term. This, we all concede, under the circumstances of these cases, could not be done. The changes sought to be made in the judgment or decrees...