J. J. Newman Lumber Co. v. Pace

102 So. 570 | Miss. | 1925

Anderson, J.,

delivered the opinion of the court.

The appellant, J. J. Newman Lumber Company, filed its bill in the chancei’y court of Lamar county against Allen Pace and others, by which it sought to cancel clouds upon its alleged title to timber on forty acres of land, and establish its title thereto, and pending the litigation to enjoin appellees from cutting and removing said timber. A writ of injunction was issued and served as prayed for by appellant. The entire cause—the main case as well as the injunction branch—was disposed of in one decree, rendered and entered in vacation.

One assignment of error is .that the decree is void because the court was without authority of law to hear the cause or any part of it, and enter a decree in vacation, without the consent of the parties, which was not had. We find it unnecessary to notice any other assignment of error, because, in our view, this assignment must be sustained and the cause go back for another trial.

The controlling facts out of which this question arises are substantially as follows: The cause came on for final hearing on the pleadings and proofs at the regular June term, 1923, of the chancery court of Lamar county. The final decree recites that at that term of the court the cause was, by agreement of the parties, takeu out by the court for decision in vacation. The final decree recites, further, as follows, with reference to the hearing and decision of the cause: That on November 9, 1923, before the next regular term of the court, the chancellor delivered a written opinion in the cause which was final therein, and a copy handed solicitors for the respective parties;, that no decree, however, was entered during that vacation; that the cause then came on for hearing during the regular December term, 1923, of the court, when the court, after considering the same, entered an order setting the cause for further hearing in vacation on the 28th day of December, 1923, “for the taking of further evidence as to the damages suffered by the defendants Howard and Lott, and for the entering of a final decree in said cause in accordance with the said written opinion.” That on December 28, 1923, in accordance with said order so made, the cause “came on for further and final hearing, and the court having heard and considered said cause, took the same under further advisement, and doth find from the evidence” against appellant, etc. Then, in the same decree, the injunction issued in the cause was dissolved and appellees Howard and Lott were awarded damages suffered by them against the principal and sureties on the injunction bond. Appellant objected to the cause being taken out for further hearing, and decree in vacation.

Appellees contend that the action of the court in this respect was authorized by section 506 of the Code of 1906 (section 262, Hemingway’s Code). Courts are powerless to act in vacation unless expressly authorized so to do by statute. If there was any authority of law for the partial trial of this cause and the rendition of final decree in vacation, it must be found in the statute above referred to. In our opinion it contains no such authority. It provides that the chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement at a term of the court. Clearly there is no authority there for a trial in vacation in whole or in part, if there be such a thing as a partial trial of a cause. By that provision of the statute it was intended alone to authorize the chancellor to decide and render decrees in vacation in causes already tried and submitted to him. There follows then a provision of the statute that:

“By consent of the parties of their solicitors of record he may try causes and deliver opinions and make and sign decrees therein in vacation. ’ ’

There is nothing in the statute authorizing the action of the court taken in this cause. The record shows in unmistakable terms that appellant objected to the hearing and the decree had in this cause in vacation. The court in its decree taking it out for hearing expressly so states.

It was held in Y. & M. V. R. Co. v. Lawler, 130 Miss. 421, 94 So. 220, that under this statute the chancery court could not try a cause and make a Amlid decree against a party in vacation avIio liad not agreed to a vacation trial. It is said in the opinion in that case,, among other things:

“The court had no poiver under this statute to try any issue in vacation affecting appellant without its consent.

It is undisputed that in the case at bar the court at least tried one issue in vacation without appellee’s consent, namely, the question of damages on the injunction bond. And without the consent of appellant, the decree on that branch of the case, as well as on the main case, was made and entered in vacation. The decree is an entirety. The court could not split the cause up and without the consent of the parties try a part of it in term time and a part of it in vacation. The entire decree in this case is affected by the unauthorized act of the court. As we view it, the trial of this cause was begun at the regular term of a court, but was proceeded with and finally determined in vacation Avithout the consent of the parties. The hearing in vacation on the 28th day of December, 1923, was the controlling, and, in fact as Ave see it, the final hearing of the cause. As a result of that hearing a final decree was entered adjudicating all the questions in the cause. We are therefore forced to the conclusion that the action of the court in rendering a final decree in this case in vacation was Avithout authority of law. The court was without power to act.

Reversed mid remanded.