Ex parte Stanfield

53 So. 538 | Miss. | 1910

Anderson, J.,

delivered the opinion of the conrt.

The chancellor made two decrees in vacation on two separate days for the partial removal of the disability of minority of the appellant, Clara Beal Stanfield, in order to enable her to settle certain conflicting claims with her mother and half-sister in the lands inherited by them from the husband and father, and to sell and convey her interest in such lands. At a term of the court subsequent to the making of these vacation decrees, the chancellor, at the instance of the guardian for said minor, heard testimony tending to show that such vacation decrees should not have been entered, and thereupon a decree in term time was entered, setting aside and vacating such vacation decrees, from which last decree, said minor, by her next friends, her mother and uncles, prosecutes this appeal.

The single question for decision is whether the chancellor, in term time, has the power to set aside and vacate a decree, made in vacation, removing disabilities of minority. Section 507, Code 1906,expressly confers on chancellois, among other powers, that to make and enter decrees in vacation “for the removal of disabilities of minority,” and provides that they are “to exercise all powers in such matters that could be done by them in term time;” and section 506 provides that “orders and decrees, which a chancellor may make in vacation, shall be entered and recorded on the minute book of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.” By the very terms of the statute itself such decrees are final, and the remedy of a complaining party is hy appeal. They are not vacation decrees, which must be approved in term time, like the clerk’s order at rules. All final decrees made in term- time remain in the breast of the chancellor until the adjournment, and may be amended or vacated at any time during the term, but not afterwards. 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 a term of court, and court had adjourned.

Reversed, and decree here for appellant, setting aside the decree in term time, vacating the vacation decrees.