McDaniel Bros. Const. Co. v. Jordy

• Citation: 185 So.2d 450,254 Miss. 839
• Decision Date: 18 April 1966
• Docket Number: No. 43786,43786
• Parties: McDANIEL BROTHERS CONSTRUCTION COMPANY, Inc. v. Walter S. JORDY, d/b/a Jordy Associates.
• Court: United States State Supreme Court of Mississippi

Page 450

185 So.2d 450

254 Miss. 839

McDANIEL BROTHERS CONSTRUCTION COMPANY, Inc. v. Walter S. JORDY, d/b/a Jordy Associates.

No. 43786.

Supreme Court of Mississippi.

April 18, 1966.

Young & Young, Pat H. Scanlon, Jackson, for appellant.

Watkins & Eager, William E. Suddath, Jr., Jackson, for appellee.

ROBERTSON, Justice:

The appellant and appellee have both filed suggestions of error to the opinion of this Court in the above styled case, reported in 183 So.2d 501 (Miss.1966). After carefully considering the briefs filed, we have determined that both suggestions of error should be overruled.

Appellee, Walter S. Jordy, contends that the appellant did not raise in the trial court the question that the July, 1964, Term of Court had not been properly extended and that the judgment entered by the trial judge on August 19, 1964, was void because entered in vacation. The appellee insists that the appellant is now estopped from raising this question for the first time on appeal to this Court. The cases cited by appellee would have been applicable except for the fact that the issue here is jurisdictional, and we are required to determine whether or not we have jurisdiction, and may do so on our own motion. See the cases cited in Hyde Construction Co., Inc. et al. v. Highway Materials Co. et al., 248 Miss. 564, 572, 159 So.2d 170, 173, 162 So.2d 856 (1963).

Appellee contends that appellant consented to the entering of a judgment on the motion in vacation and that cases may be heard in vacation under the authority of Mississippi Code of 1942 Annotated section 1523 (1956). The record does not bear out nor support this contention. No order appears on the Minutes of the Circuit Court during the July, 1964, Term taking this matter under advisement for decision in vacation, nor does any order appear thereon reciting that by consent of the parties the matter could be tried and judgment entered in vacation.

The truth of the matter is that the trial judge intended to extend the July Term, but through inadvertence, the proper order was not entered on then Ninutes during the July, 1964, Term. When the omission was discovered, a nunc pro tunc order extending the July, 1964, Term for one week was prepared by the attorney for the appellee, and signed by the trial judge on December 30, 1965. The attorney for the appellant was notified before this order was signed and in the Judge's Office advised the trial judge and the attorney for the appellee that he did not think that the Minutes of August 14, 1964, could be thus corrected with nunc pro tunc order at that time. There is thus no question of estoppel involved in this case.

The appellant contends in his suggestion of error that this Court should modify its opinion and direct that the case be retried by the Circuit Court. In reversing and remanding this case we did not intend to bind the hands of the trial court, nor to dictate what action the trial court should take. We, in effect, found that the 'motion to correct judgment or for judgment notwithstanding the verdict,' which motion was heard at the July, 1964, Term but no judgment rendered thereon at the regular term, is still undisposed of and the court upon remand of this case is authorized to act on said motion in any way it sees fit. Mississippi Code of 1942 Annotated section 1649 (1956), provides:

If any court shall not be held at any term, or shall not continue to sit the whole term, or during the term shall not have heard and determined all matters standing for trial, then all suits and proceedings remaining undecided shall stand continued of course until the next term; * * *. (...