Anderson v. McInnis

56 So. 170 | Miss. | 1911

Mayes, C. J.,

delivered the opinion of the court.

Section 506 of the Code on 1906, vests the chancellor-with power to deliver opinions and to make and sign decrees in vacation in cases taken under advisement by him at a term of court; and by consent of parties, or their solicitors of record, he is given power in vacation to-try cases'and deliver opinions, and make and sign decrees therein. Such decrees, and all other orders and decrees which the chancellor may make in vacation, are required to he entered and rendered on the minute hook of the court in which the cause or matter is pending, and’ are given the same force and effect as if made, entered,, and recorded in term time, and appeals may he prosecuted therefrom as in other cases. In the case of Ex parte Stanfield, 53 South. 538, this court held that “final' decrees made in vacation, where authorized by law, when-signed by the chancellor and delivered to the clerk to-be entered, are .beyond recall, and stand as if made during the term of court and court had adjourned.” In-other words, in construing section 507 of the Code, dealing with vacation powers, this court held that under the terms of the statute all decrees authorized by it to he entered are final decrees, and are to be given the same effect as if rendered during a term of court. What was-said by the court in construing section 507 applies to section 506 with like effect. In view of the above decision, it follows that when the decree in this case was signed by the chancellor, and entered on the minutes of the court by the clerk, it was a final decree, beyond the power of the chancellor to recall or modify, except in the manner authorized by section 1016, Code of 1906, or on the ground of fraud. The judgment in this case is not sought to be changed in either of the ways indicated. The decree was rendered in August, 1910, and in January, 1911, a motion is made to change the decree. On this motion no proof of any hind is offered to show fraud. The basis of the motion is that the decree entered does not represent the true decree of the court. It is- not alleged in the motion that the decree was erroneously entered by the clerk, or changed in any way by him; but the motion asserts that the mistake, if mistake there was, was the mistake of the •chancellor in not making the decree he intended to make. No decree of this character can be modified or changed by a simple motion. Such a decree is a finality, and, if impeached, it must be for some stronger reason than that indicated by this record and in a different way. No mere motion, asking for a change in the decree on the ground that it was not intended to be rendered by the chancellor, the motion being unsupported by any kind of contrary proof or showing, can suffice.

The case of Wilson v. Town of Hansboro, 54 South. 845, is a very different case from the one presented by this record. In the Wilson case it was sought to have the court correct a judgment rendered at a former term, not because the court had made any mistake about it, but because the clerk had entered a judgment the reverse ■of that which the court had directed to be entered. In other words, the question in that case was whether or not the judgment which the court actually rendered should prevail, or the judgment erroneously entered by the clerk and not authorized by the court; and this court held that the actual judgment of the court should prevail, as a matter of course, and directed that the judgment of the court below should be entered on the minutes in lieu of the unauthorized judgment entered by the clerk. Under the facts presented by this motion, the court was without power to make any change in its decree.

Reversed and remanded.