88 So. 497 | Miss. | 1921
delivered tbe opinion of tbe court.
This cause was affirmed on a former day at this term of court, and a suggestion of error overruled.
This so-called motion to modify and correct tbe judgment heretofore rendered is, in effect, nothing more than a suggestion of error. It was insisted in tbe motion that tbe record shows that tbe appellee was indebted to tbe appellant, and that we should have rendered judgment for tbe amount tbe appellee owed tbe appellant as evidenced by exhibits to the bill, which tbe answer of tbe defendant admits to be owing. Tbe exhibits are, first, a note for three thousand, eight hundred and seventy-five dollars dated September 1, 1919, due one year after date; and, second, a check for five hundred dollars, payable to the order of appellant, dated September 6, 1919. The bill was filed on September 17, 1919, and consequently the promissory note was not then due, nor does the record show that the check was presented for payment, but," on the contrary, it shows it was not presented for payment, and if it had been presented it would have been paid. Besides the complainant’s bill does not rely on the note or the check, but repudiates their acceptance by the appellant. Paragraph 20 of the bill reads as follows:
“Complainant now states that she has met every promise, fulfilled every agreement, and complied with every wish of the defendant in the matter of the purchase of the lands hereinbefore mentioned, except seh has not accepted the note and check hereinbefore delivered her by defendant in settlement of the difference between complainant and defendant, and has merely held such papers at the request of the defendant until some future date, ivhen defendant promised to give complainant a deed to the lands hereinbefore mentioned as having been purchased from the defendant. Therefore complainant does not believe that defendant intends to comply with her*207 many promises, contracts, and agreements, and she is advised to deliver to the clerk of this court the aforesaid note and check, there to remain subject to the demands of the defendant, as this complainant does not care to deliver these papers to the defendant, when defendant keeps requesting complainant to carry them home and return later with them, as for many reasons it would be most disagreeable for complainant to do this.”
It is insisted that, if we do not modify the judgment, the judgment now affirmed will constitute res adjudicaba against the note and check. The effect of the check is to create a debt payable on demand, and no demand has ever been made; nor was the note due; Consequently no action could be maintained on either, and no plea of res adjudicaba can be interposed. We have said this much oh this motion so that no confusion could arise as to any possible action on the note or check. The motion in this case is not authorized under any pleading known to this state. As said in Couret v. Conner, 118, Miss. 598, 79 So. 801, a motion to correct judgment only exists as provided in section 1016, Code of 1906 (section 736, Hemingway’s Code), and in cases where the clerk fails to enter judgment in accordance with the opinion of the court. When a party has had one suggestion of error, and that has been overruled and judgment has been entered in accordance with the decision of the court, he has no further right to be heard, and a motion filed in violation of the rules of practice should be stricken from the files, which course will be taken in the present case. So ordered.
