Illinois Cent. R. Co. v. Grimm

• Decision Date: 14 June 1915
• Docket Number: 17782,17974
• Citation: 109 Miss. 479,69 So. 401
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. GRIMM

69 So. 401

109 Miss. 479

ILLINOIS CENT. R. CO. v. GRIMM

No. 17782, 17974

Supreme Court of Mississippi

June 14, 1915

APPEAL from the circuit court of Copiah county. HON. J. B. HOLDER Judge.

Suit by John Grimm against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

Appellee as plaintiff, filed suit in the circuit court of Copiah county against the appellant, defendant below, demanding damages on account of the alleged negligent killing of his father by one of defendant's trains. This suit proceeded to trial at the May, 1914, term of the circuit court, which trial resulted in a verdict and judgment for the plaintiff. From that judgment the defendant appealed, and immediately thereafter the court adjourned for that term. After the circuit court had adjourned, the parties who had been defendants in the circuit court filed their bill in the chancery court against Grimm, who had been plaintiff in the circuit court, and alleged therein that since the circuit court had adjourned the complainants (defendants in the circuit court) had discovered certain new evidence which was pertinent to the case, and prayed that the judgment of the circuit court be set aside and a new trial of the case in the circuit court be ordered by the chancery court. At the final hearing the chancery court decreed that complainants were not entitled to the relief prayed for, and that their bill be dismissed. From this final decree the complainants appealed to the supreme court. Both cases, the law case and the chancery case, are pending on appeal in the supreme court Nos. 17782 and 17974, respectively. And now Grimm, the appellee, plaintiff in the law case, and defendant in the chancery case, files in the supreme court, in the law case No. 17782, his motion to dismiss the appeal; and as grounds for his motion says that the filing of the bill of complaint in the chancery court and the proceeding thereon operated as a release by appellant of all errors, if any there were, in the judgment at law, and also operates as an abandonment of the appeal in this, the law case, No. 17782. Held, that the motion be overruled.

Following is appellee's motion to dismiss the appeal:

"Comes John Grimm, appellee in the above styled cause, and moves the court to dismiss the same, for the following reasons, to wit That on the second day of April, 1914, he filed suit in the circuit court of Copiah county, Miss., against the appellant, and another, praying damages in the sum of twenty five thousand dollars, for the death of his father, Clifford E. Grimm, at the hands of said appellant. That said cause came on to be heard at the May term of the said court, and the trial thereof resulted in a verdict and judgment in favor of this appellee in the sum of four thousand dollars. That it is from this judgment that this appeal is taken. That said judgment was rendered on the twentieth day of May, 1914, and this appeal was taken on the tenth day of June, 1914."

Thereafter to wit, on the twenty-ninth day of July, 1914, appellant filed in the chancery court of Copiah county, Miss., its bill of...