Howie v. Bonds

• Decision Date: 26 February 1906
• Citation: 40 So. 227,87 Miss. 698
• Court: Mississippi Supreme Court
• Parties: WILLIAM T. HOWIE ET AL. v. CLIFFORD A. BONDS

40 So. 227

87 Miss. 698

WILLIAM T. HOWIE ET AL. v. CLIFFORD A. BONDS

Supreme Court of Mississippi

February 26, 1906

FROM the chancery court of Scott county, HON. JAMES L. MCCASKILL Chancellor.

Bonds the appellee, was complainant in the court below; Howie and others, the appellants, doing business under the firm name of Howie Bros., were defendants there. The chancery court rendered a decree in favor of the complainant for the sum of eight hundred and thirty-four dollars as commissions on the sale of five thousand five hundred and sixty acres of land. From this decree the defendants appealed to the supreme court, which affirmed the decree upon the entry of a remittitur by the complainant, the chief justice saying, in affirming the judgment:

"The case is before us on direct appeal only, no cross-appeal having been prosecuted. It is manifest from the evidence that it was error to allow commissions on the eight hundred and eighty acres of land described in 'Exhibit A to Kent's Deposition,' since Howie Bros. had nothing to do with the sale of that tract of land. If a remittitur shall be entered as to these commissions, the cause will be affirmed; otherwise, reversed. So ordered."

The remittitur being duly entered, a judgment was rendered in the supreme court affirming the decree appealed from, fixing the proper amount; but that decree also awarded the appellee five per centum damages on the sum recovered, which met the approval of the supreme court. The appellants then filed a motion to correct the judgment so as to relieve them of damages, claiming that (since a remittitur was ordered) the judgment was not an affirmance of the decree of the court below, within the meaning of Code 1892, § 4360.

Motion overruled.

Green &amp Green, for the motion.

Strictly and properly, the decree of the chancellor was not affirmed. The decree was reversed, and an entirely different decree was here rendered under the inherent power of this court, which adjudged that the finding of the chancellor was erroneous, in that he failed to enter the correct decree, and that it was essential that the decree as entered should be reversed before justice could be done in the premises and the right result reached; and to make this possible and in order to save time and expense and to render the decree that the court should have rendered, this court entered the decree in the instant case, and did not remand the cause.

The cases of Delta & Pine Land Co. v. Wallace, 83 Miss 656 (S. C., 36 So. 263), and Carver v. City of Jackson, 82 Miss. 583 (S.C., 35 So. 157), were similar to the one at bar, yet there was no judgment there for damages. So far as we have known, this has been the universal practice.

This cause was not affirmed, but was reversed, and decree was entered here for the amount due. It is a misconception to say that the decree of the chancellor was correct and was affirmed, and that, upon examination of the record, this court found no error therein. There was error therein; this court so adjudged, and its mandate to the lower court will state that such was the case. But as there was no necessity to take further proof, this court rendered the proper decree upon its own motion so as to finally dispose of the cause.

Argued orally by Garner W....