54 So. 433 | Miss. | 1910
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
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
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.