Weir v. Jones

• Decision Date: 06 June 1904
• Citation: 37 So. 128,84 Miss. 610
• Court: Mississippi Supreme Court
• Parties: RICHARD S. WEIR v. ANN J. JONES ET AL

37 So. 128

84 Miss. 610

RICHARD S. WEIR v. ANN J. JONES ET AL

Supreme Court of Mississippi

June 6, 1904

FROM the chancery court of, second district, Carroll county, HON ADAM M. BYRD, Chancellor.

After the decision of this case in the supreme court (see Weir v Jones, ante p. 602), the appellees made a motion in these words:

"Appellees move the court to strike from the record herein the paper purporting to be the appointment of J. N. Flowers as substituted trustee, appearing on pp. 49 and 50 of the transcript, and also to strike from the opinion herein (36 So. 533) all reference to said paper, or at least so much of the opinion as recites and states that said paper is an exhibit to the bill of complaint, for the following reasons:

"(1) Said paper is not an exhibit to the bill or a part of the record, and appellees show that the same was copied in the transcript by the clerk of the court below at the request of counsel for appellant; this being done without authority said paper not being a part of the record in the court below or this court.

"(2) It is the purpose of appellees, under leave granted, to amend the bill of complaint so as to charge, among other things that the said alleged appointment of the trustee was and is void, thereby rendering the sale of the land invalid; and if the said paper remains in the record, and the reference thereto in the opinion remains in the record after the adjournment of this court, appellees fear that it will be held or claimed that the validity of said appointment is res judicata.

"(3) It is evident that the reference to the said appointment in the opinion was inadvertently made, upon the supposition that said paper was a part of the record, and, since this is not true in point of fact, appellees protest against the statement in the opinion that said paper was an exhibit to the bill or a part of the record in this cause."

Motion denied.

Brame & Brame, and J. S. Smith, for the motion.

J. N. Flowers, and Alexander & Alexander, contra.

OPINION

OPINION OF THE COURT OF THE MOTION.

Per Curiam.

On page 10 of this record the deed from the substituted trustee to the appellant is expressly referred to, and a copy thereof in the language of the original bill of complaint, "is hereto attached as Exhibit 'D' to this bill, and the same may also be found of record in deed book No. 14, on p. 325 et seq." That deed is copied into and forms part of this...