Hays Finance Co v. Bailey, 38078
| Decision Date | 18 February 1952 |
| Docket Number | No. 38078,38078 |
| Citation | 56 So.2d 806 |
| Parties | HAYS FINANCE CO., Inc., et al. v. BAILEY. |
| Court | Mississippi Supreme Court |
Barnett, Jones & Montgomery, Jackson, for appellants.
John G. Burkett, Jackson, for appellee.
The appellant has moved that this cause, which has heretofore been decided upon appeal and upon Suggestion of Error, be remanded to the docket for hearing and decision in banc. It is asserted that the judgment herein is not a final judgment of this Court, citing Title 28 U.S.C.A. Sec. 1257, Chapter 646, 62 Stat. 929. Anxiety is expressed as to the application of Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300.
Putting aside any consideration of our duty to hear this motion at this stage, we take cognizance thereof in view of the implications of the foregoing citations.
At the time this cause was decided and judgment entered, and at the time judgment was entered overruling the Suggestion of Error therein, this Court was composed of six Judges, who, under Section 149A of the Constitution of 1890, implemented by Rule 34 of this Court, sat in two divisions of three Judges each. This cause was decided finally by Division B without dissent.
In Gorman v. Washington University, supra, the Court was construing the Missouri Constitution which contained a proviso that a cause pending in a division of the Missouri Supreme Court shall, when a judge of a division dissents from an opinion therein, or when a Federal question is involved, be transferred to the Court for its decision, on application of the losing party. Rule 24 of that Court authorizes the transfer by motion of a cause pursuant to the provisions of the Constitution, from either division to the Court in banc. It was held that this case therefore was one which, after disposition of the cause by the division, could, upon application, be transferred to the full Court for review.
Under our Constitution and the rules and practice of this Court, a case in a division may be transferred to the full Court upon its own motion but never on the motion of a party litigant. Therefore, there is no right in the appellant to require such submission. Hudson v. Gulf Refining Co., 202 Miss. 331, 30 So.2d 66, 421. An affirmance of a case by an equally divided court is a judicial precedent. Robertson v. Miss. Valley Co., 120 Miss. 159, 81 So. 799.
It is immaterial that, since the decision of this case, the Legislature has ratified an amendment to our Constitution increasing the number of Judges to nine. All judgments entered herein antedated the adoption...
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Russell v. State
...and held that the judgment of the three-judge division was a final judgment rendered by the highest court of the state. Hays Finance Co. v. Bailey, Miss., 56 So.2d 806, appeal dismissed, 343 U.S. 959, 72 S.Ct. 1057, 96 L.Ed. 1358 After adoption of section 145B, the Court adopted 'for the co......
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General Contract Corporation v. Bailey
...L.Ed. 1358, that court sustained a motion to dismiss the appeal 'for the want of a substantial federal question.' See also Ibid., Miss., 56 So.2d 806. Affirmed in part, and in part reversed and judgment ROBERDS, P. J., and LEE, ARRINGTON and LOTTERHOS, JJ., concur. ...
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Carney v. Anderson
...in banc is deemed advisable. Under our Constitution and rules the judgment heretofore entered is a final judgment. Hays Finance Co. v. Bailey, Miss., 56 So.2d 806. Nevertheless, we have considered appellants' motion in banc so that their right of appeal may be preserved if there be any ques......