Couret v. Conner

Oct 15, 1918

Versions:79 So. 801

118 Miss. 598

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

At thе last term of this court the decree rendered by the court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍below in this cause was reversed, and the cause remanded. 79 So. 230. After the adjournment of this court, and more than fifteen days after the judgment was rendered, this motion was filed by appellаnt, praying that the judgment rendered by us be corrected, so as to award judgment final for appellant here. This motion is not predicated upon any mistake of the clerk in entering a judgment different from that rendered by the court, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍nor upon any of the matters contained in section 1016, Code of 1906 (section .736, Hemingway’s Code), but is predicated sоlely upon the alleged error of the cоurt in remanding the cause to the court below, instеad of rendering final judgment here; consequently it is in reality a suggestion of error, and should have beеn filed within the time fixed by rule 14 (72 So. viii), but, since it was not so filed, it must be is overruled.

Overruled.

Concurrence Opinion

Stevens, J.

(specially concurring).

I do not think the motion under cоnsideration amounts to a suggestion of error, hut, оn the contrary, that the motion is one filed in good faith as such, and should he considered and disposed of by the court as a motion. I think the motion should be overruled, but not for the reason stated in thе majority opinion. This motion is not predicated upon any alleged error of this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court in writing or rendering the opinion disposing of this appeаl. It is not contended by counsel for the motion that the court wrongfully interpreted the law of this case, or that the court wrongfully applied any lеgal principles. The very counsel who won thеir case present this motion, and the motion itself, is bottomed upon the very opinion deliverеd by the court.

It seems to me that the decision of the case is one thing, and the judgment based on this dеcision is another and separate mattеr. I am fully conscious of the fact that the line оf demarcation between a motion and а suggestion of error is sometimes very obscure, but I. do not think litigants should be denied the right to have the judgment rеndered by the court corrected, so long аs this court has jurisdiction and the mandate has not been sent to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the trial court. The case is not finally disposed of until the suggestion of error is overruled. If it then appears that the judgment as. enterеd and made final by the overruling of the suggestion of error is, for any reason appearing on thе face of the record, improper, this court, in the ex'ercise of its unlimited constitutional appellate authority should not be fettered in doing full and complete justice by a set of self-inflicted rules.