46 Miss. 666 | Miss. | 1872
At the April term of the high court of errors and appeals, 1868, upon the motion of the defendants in error, a judgment was rendered, dismissing the writ of error in this case, for the want of prosecution.
At the special July term of said court, 1868, upon motion of the defendants in error, the former judgment of the court, dismissing the writ of error for want of prosecution, was set aside, and the cause re-instated and a judgment rendered against the plaintiffs in error, Lane & Standley and Moore and Yasser, their sureties on the writ of error bond. And at the October term, 1868, of said court, the said defendants, Moore and Yasser, made the motion now under consideration, to set aside and vacate the last-mentioned judgment, for the want of jurisdiction in the court to render it. The judgment rendered at the special term in July, and which this motion seeks to have set aside, is absolutely null and void, for two reasons: 1st. For the want of juris
This case, and the parties to it, had been out of this court from the April term, until the July term following, at which the defendants in error made their motion to set aside the judgment, which they had procured at a previous term, and without any notice, so far as the record shows, to the plaintiffs in error, or to Moore and Yasser, their sureties in the writ of error bond, had the former judgment set aside, the cause re-instated, and a new and different judgment immediately entered up against the plaintiffs in error, and their said sureties.
Even if the court had possessed the power after such a lapse of time, to bring back and resuscitate the cause, and render another and different judgment, it could not legally have been done without notice to the plaintiffs in error, and their sureties. For it is a salutary principle of law, which
For these reasons, the judgment rendered in the July term, 1868, is null and void.
Where this court has jurisdiction, and renders a judgment upon matters of law, that judgment cannot be set aside at a subsequent term. But, where the court had no jurisdiction to render the judgment, it may be set aside at a subsequent term.
The motion is therefore sustained.