Shipman v. Lovelace

• Decision Date: 13 October 1952
• Docket Number: No. 38406,38406
• Citation: 60 So.2d 559,215 Miss. 141
• Court: Mississippi Supreme Court
• Parties: SHIPMAN v. LOVELACE et al.

Page 559

60 So.2d 559

215 Miss. 141

SHIPMAN v. LOVELACE et al.

No. 38406.

Supreme Court of Mississippi.

Oct. 13, 1952.

Howie & Howie & Montgomery, Jackson, for appellant.

Wells, Thomas, Wells & Smith, Jackson, for appellees.

HOLMES, Justice.

Appellees sued the appellant in the Chancery Court of the First Judicial District of Hinds County, seeking to have themselves adjudged the owners of the south half of Lot 2, Block R, West End Survey, in Jackson, Mississippi, and to cancel the claim of appellant thereto, and to enjoin appellant from interfering with the use, occupancy, and enjoyment thereof. The appellant answered, making her answer a cross-bill, and asserted ownership of the property by virtue of a parol gift from her father, J. L. Lovelace, Sr., and adverse possession. The trial court granted the prayer of the original bill and dismissed the cross-bill. On appeal here, it was held that the evidence was conflicting on the question of the parol gift and the issue of adverse possession, and that the finding of the chancellor thereon should not be disturbed, but it was further held that the decree of the court below should be modified so as to preserve to appellant the right to retain the use of the sewer line from her house across the south half of the lot, and so as to retain the use, but not exclusive, of the driveway across the west end of the lot, and as so modified the decree of the court below was affirmed. Shipman v. Lovelace, Miss., 58 So.2d 657.

No question as to the award of the appeal costs was brought to the attention of the court, and no reference thereto was made in the opinion of the Court of orally from the bench, and no decision of the Court was rendered thereon. The opinion in the case was rendered on May 5, 1952, and on the same day a decree was entered in this Court affirming the decree of the court below as modified in the respects hereinabove set out, and awarding the appeal costs against the appellant. In so entering the decree in this Court, it is manifest that the Clerk conceived that the award of the appeal costs against the appellant was mandatory under the following provisions of Section 1971 of the Mississippi Code of 1942:

'In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant * * *, at the rate of five per centum and costs, * * *.'

After the expiration of the time allowed for the filing of a suggestion of error, and after the expiration of the term at which the decree was entered, the appellant, on June 25, 1952, filed a motion herein to correct the decree entered by changing the award of appeal costs therein so as to assess the costs of the appeal in equal proportion against the appellant and the appellees.

It is the contention of the appellees that this motion seeks to set aside the decree heretofore rendered herein in so far as it adjudicates court costs and to render a different decree with respect thereto, and that therefore the motion is in effect a suggestion of error and cannot be considered because not filed within the time allowed by the rules of court.

The question presented makes pertinent a statement of the distinction between a suggestion of error and a motion to correct judgment. A suggestion of error seasonably filed lies to effect a change in the decision actually made or to modify a judgment authorized and intended to be entered. Sample v. Romine, 193 Miss. 706, 709, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346. A motion to correct judgment lies for any of the grounds stated in Section 1670 of the Mississippi Code of 1942, or to correct a judgment so as to conform to the opinion of the court or conform to that intended by the court to be entered, or to correct a judgment entered by the clerk without statutory authority or the direction of the Court. Couret v. Conner, 118 Miss. 598, 79 So. 801; Crudup v. Roseboom, 125 Miss. 205, 88 So. 497; Sample v. Romine, supra; Claughton v. Ford, 202 Miss. 361, 30 So.2d 805, 32 So.2d 751. The power to correct a judgment entered at a former term and containing any such error is inherent in every court of record. Cotten v. McGehee, 54 Miss. 621; Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845; Claughton v. Ford, supra; Chrismond v. Chrismond, 213 Miss. 189, 56 So.2d 482.

The motion before us does not seek to effect a change in the decision of the Court or to modify a judgment authorized and intended by the court to be entered. There was no decision of the Court on the question of costs. This question was never presented to the Court or passed on by the Court. The judgment as to the award of costs cannot be said to be one intended by the Court to be entered since the Court made no decision and gave no directions as to the award of costs. The clerk in entering the decree manifestly applied Code Section 1971, supra. This was a mistake. The section applies only to unconditional affirmances. Howie Bros. v. Bonds, 87 Miss. 698, 40 So. 227. We are not here confronted with an unconditional affirmance. The decree of the court below was not unconditionally affirmed, but it was modified and affirmed as modified. The clerk in entering the decree was, therefore, not authorized to award the costs in accordance with the provisions of Code Section 1971, supra. This Court has consistently held that the allowance or disallowance in a judgment of the five per centum damages in contravention of said Section 1971 may be corrected on motion even after the expiration of the term at which the judgment was rendered. Illustrative of these cases are Courtney Bros. v. John Deere Plow Company, 122 Miss. 611, 84 So. 690; Sample v. Romine, supra; Claughton v. Ford, supra; Chrismond v. Chrismond, supra. The same rule applies to the provision for costs under this section since the statute covers both the five percentum damages and costs without making any distinction between them. Aetna Life Insurance Co. v. Thomas, 166 Miss. 53, 54, 144 So. 50, 146 So. 134. We find no statute which expressly or by fair implication makes provision for the assessment of the costs in a case of conditional affirmance other than the general statute, Section 682 of the Mississippi Code of 1930, Section 1593 of the Mississippi Code of 1942, held applicable to the Supreme Court in Aetna Life Ins. Co. v. Thomas, supra, and which is as follows:

'If a case shall occur in any court not embraced expressly or by fair implication in some provision of law, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper; and every court may protect a party from being taxed with the fees and costs of an excessive number of...