Whittington v. Sumrall, 102 So. 572

Whittington v. Sumrall

102 So. 572 | Miss. | 1925

Anderson, J.,

delivered the opinion of the court.

This is an appeal by appellants E. 0. Whittington and others from a judgment against them in replevin involving the possession of an automobile. The judgment appealed from was the second judgment for the automobile rendered by the circuit court of Tallahatchie county in favor of appellee James Sumrall, trustee, against appellants. The first judgment was set aside on motion of the appellee at a term of the court subsequent to the term at which it was rendered. The assignment of error mainly argued and relied on is that, the court was without authority of law to set aside the judgment at a subsequent term to that at which it was rendered. It is conceded by appellee that that principal is sound generally, but that it has no application to the facts in the present case because appellee’s motion to set aside the judgment here involved was confessed by appellants; and appellee árgues that therefore, regardless of the ground upon- which the judgment was set aside, appel*514lants are estopped to question the action of the court. The record shows that the motion to set aside was confessed by appellants. After the judgment was set aside, the cause was treated as a pending cause and proceeded to trial resulting in the judgment hero appealed from. The motion to set aside the judgment was based, not on the ground that the judgment was void on its face or was obtained by fraud, but upon the ground that it was entered by “inadvertence and mistake.” Will appellants be permitted to repudiate their action in confessing the motion to set aside and vacate the judgment and thereby procure a reversal and another trial?

By their action in confessing the motion appellants at least tacitly agreed that the first judgment ought not to stand; that a new tria-l should be had. Having by their action in that respect been instrumental in bringing about another trial in which a judgment more unfavorable than the first judgment was rendered against them, they will not now be permitted to claim that the action of the court setting aside the first judgment was void. By confessing the motion to vacate arid set aside the first judgment another trial followed, taking the time of the court and entailing time and probably expense on the .part of appellee. Appellants are estopped from questioning the first judgment. Their confession that the first judgment was invalid when it suited their supposed interests in binding on them. When they found that they had made a mistake, they could not claim that the action of the court in taking their first view was without authority of law. 23 Cyc. 905, makes this statement, which is supported by cases in the notes:

“The court may vacate or open a judgment after the end of the term if the parties consent or agree thereto.” Other assignments of error are argued by appellants. We find no merit in any of them, and that they involve principles of law so well settled as not to call for a discussion by the court.

Affirmed.