Haines v. Haines, 54 So. 433

Haines v. Haines

54 So. 433 | Miss. | 1910

Smith, J.,

delivered the opinion of the court:

Appellees filed their bill in the court below, asserting title to the property in controversy as heirs of one Caleb Haines, deceased, their father, alleging that their mother, Lucy Haines was the lawful wife of said Caleb Haines, deceased. Appellants, who are also children of Caleb Haines by Eliza Haines, in their answer, denied that Lucy was the lawful wife of Caleb, and claimed that Eliza was his lawful wife. The court below by its decree having sustained the contention of appellees, an ap>peal was taken to this court, whereupon this decree was reversed, and the cause remanded for decree in accordance with the opinion of this court. This opinion will be found reported in 90 Miss. 100, 43 South. 465.

Upon the return of the cause to the court below, appellees, by leave of court first had and obtained, filed an *838amended bill, by which they alleged that Caleb Haines and Lucy Haines, their mother, were tenants in common of part of the land in controversy, each owning an undivided half interest therein, and that they, the appellees, were therefore the owners of the half interest of which Lucy died seized and possessed. The result of this amendment is that appellees now claim a part of the land as heirs of their father, Caleb, and a part as heirs of their mother, Lucy. To the amended bill appellants filed a plea res judicata, alleging, in addition to the foregoing facts, “that the complainants made a formal application to the supreme court, after its said decision of the facts and merits of the case, to have the cause remanded to the chancery court, with instructions to the chancellor to allow them to introduce evidence of the title now set up in their amended bill, which motion or application was denied by the said supreme court; the court holding that the said title was not set up or pleaded in the complainant’s bill. And the defendants further aver and state that thereupon the- complainants made a formal motion and application to the supreme court to make an order remanding said cause to the chancery court, with directions to the chancellor to allow them to file an amended bill, or supplemental bill, in said suit, setting up and pleading the claim of title set up in this amended bill, and for leave to introduce evidence touching said claim of title, which motion and application of the complainants was denied by the supreme court. Therefore, the defendants submit to the court that the merits of the case have been adjudicated by said supreme court, on the final hearing on the appeal to said court, in favor of the defendants; and they further submit and plead that the precise question as to the claim of the complainants to file an amended bill setting up the title now claimed by them, and their claim to introduce evidence in support of said claim of title has been adjudicated against them. *839These matters are res judicata, and the judgment and rulings of the supreme court are binding on this court.”

This plea was by the court adjudged to be insufficient in law, and appellants were granted leave to answer the amended bill within ninety days. From this decree an appeal was granted to this court, to settle the principles of the cause.

When a judgment or decree appealed from is -by this court reversed and remanded to the trial court, such court has full power to allow any amendment to be made to the pleadings which it had power to allow before the judgment or decree appealed from was rendered. The remanding of a case to the trial court is for the purpose of having it tried de novo, and such a court has the same power to allow amendments to the pleadings when a cause is remanded with direction to enter a judgment or decree in accordance with the opinion of this court that it has when a cause is remanded without any such direction. If on the trial in the court below the pleadings and proof present the same case that was before this court on the appeal, the judgment or decree of the court should be in accordance with the directions given it by this court; but, should the pleadings and proof then present a different case, the judgment or decree should be made to conform thereto. Wailes v. Cooper, 25 Miss. 421; Hanserd v. Gray, 46 Miss. 75; Taylor v. Wright, 54 Miss. 722; Canning Co. v. Ott, 88 Miss. 771, 41 South. 378.

The former judgment of this court is res judicata of the case then presented; but the new matter contained in the amended bill, not being before the court, was not embraced in the judgment then rendered. Canning Company v. Ott, 88 Miss. 771, 41 South. 378.

Since the chancellor had full power to try the cause de novo and to allow any proper amendments to be made to the pleadings, the two motions made by appellees, requesting that he be directed so to do, were unnecessary and out of place in this court, and were, of course, over*840ruled. This court merely declined to act, leaving both of these matters to be acted upon by the chancellor in accordance with the law governing same. This court is one of appellate jurisdiction only, and motions of the character now under consideration should be made in the court of original jurisdiction.

Appellants also complain that, conceding the chancellor’s power to permit amendments to be made, the amendment' in question was not a proper one, and should therefore not have been permitted. This question is not presented by this record, as the appeal to settle the principles of the cause, granted by the chancellor, is only from the decree adjudging appellants’ plea to be insufficient.

The judgment of the court below is affirmed, and the cause remanded, with leave to appellants to answer within thirty days after mandate filed in the court below.

Affirmed and remanded.