44 Miss. 434 | Miss. | 1870
1st. It has been often affirmed by this court, that it is error to take judgment final by nil dicit, whilst there is a plea in the cause, undisposed of, the action of ejectment furnishes, no exception to the rule. The third article of the statute regulating that action, prescribes the plea “ of not guilty,”' which was the plea put in by the defendant, and if there be no plea, then judgment that the plaintiff recover possession of the land, shall be rendered.
2d. The several courts have defined terms, and whilst for the most part, the court retains control over all the business pending in it during the term, as to much of it, this control is lost with the adjournment. This is so as to judgments and final decrees. After the expiration of the term,, the powers of the court, on motion, or other summary application to open, or set aside the one or the other, has expired. Sagory v. Bayless, 13 S. & M., 155. In the judgment at law the only redress is by writ of error. Decrees in chancery can only be opened up by bill of review, or by appeal or writ of error.. This observation however, does not exclude the right to assail the one or the other by original bill, for fraud.
There is a special remedy provided by statute, Rev. Code, 509, art. 186, for the rectification of mistakes in judgments or'decrees, if there be any papers in the cause by which the amendment may be made. But the opposite party must haWe reasonable notice of the application to amend.
Tiie amendment made in this case, was to conform the judgment to the description of the land contained in the declaration such amendment could be made, either by the court, in term, ov by the judge in vacation, not, as a matter of course, on the mistake being brought to the notice of the court or judge. But on the condition that the party to be affected thereby, has reasonable notice, such notice was not given, or rather the record is silent on the subject.
Both assignments of error are well taken. Wherefore, the judgment is reversed, and cause remanded for a venire facias•