35 Miss. 77 | Miss. | 1858
delivered the opinion of the court.
This case has been here on three previous occasions. After the last decision here, a fourth trial was had in the court below, and a verdict was rendered for the plaintiff, which was set aside on motion of the defendant, and a new trial granted by the Circuit Court. Afterwards, and at a subsequent term, the lessor of the plaintiff moved the court for judgment in his hehalf, on the ground that the defendant in the action, with others, had obtained an injunction in chancery, restraining the plaintiff’s lessor from further proceedings in this cause: which motion was sustained, and judgment was rendered, without trial before a jury,, for the plaintiff’s lessor, for the premises in the declaration mentioned. To this proceeding, the defendant excepted, and took his bill of exceptions, by which it appears that the defendant, together with his wife, Laurena Wildy, and William Hall, filed the bill upon which the injunction was granted, alleging that Laurena Wildy and Hall are the owners, and are in possession of the land involved in this action, and that the lessor of the plaintiff claims title to the land under certain deeds, which the bill alleges convey no title, but are clouds upon the title of Mrs. Wildy and Hall; and the bill prayed that-Bonney be enjoined from setting up or attempting to enforce any claim of right, title, or possession to the land described in the bill, which is the same, as appears by description, as that sued for in this action; but no reference is made in the bill to this action, nor is any injunc
We think that the court erred in allowing the lessor of the plaintiff to take judgment under these circumstances.
The injunction, as granted, had no effect upon this suit. It did not purport to enjoin the plaintiff’s lessor from proceeding therein, so far as the rights or interest of William W. Wildy were concerned. It only restrained the plaintiff’s lessor from settingup or attempting to enforce any right or title as against the right and possession of Laurena Wildy and William Hall, who were not parties to this suit. William W. Wildy is merely a formal party to the bill, and claims no right thereby, nor is any relief sought in his behalf, either in relation to this suit or otherwise.
But if the injunction operated upon this suit, it was clearly a violation of it to proceed in the action. If in its terms or legal effect, it restrained proceedings in the action at law, the proper course was, not to disregard it, but to modify it, so as to allow the plaintiff’s lessor to proceed at law; or, if the bill had sought relief upon the ground that the complainant’s relief was in equity, and not at law, the liberty should have been reserved to the plaintiff, in granting the injunction, to proceed in his action at law to judgment. Ham v. Schuyler et al., 2 John. Ch. 140; Freeman’s Ch. Rep., 347. But neither of these causes was proper here, because, the right and title set up in the bill, being between different parties from those to the action at law, the relief sought in the bill did not necessarily interfere with the action at law; and the fact that the injunction had been granted was no valid reason why the plaintiff at law should not establish his title according to the rules of law.
It is, however, insisted, that, notwithstanding this error, the judgment was correct upon the whole record, because, upon the fourth trial, a verdict was rendered for the plaintiff, upon which he should have had judgment; but that it was erroneously set aside and a new trial granted by the court below, there having been three new trials previously granted; and therefore that the court had no
It appears, by the record, and by the history. of this case, as presented by the records of this court, that no new trial was granted in the case, but the one granted after the fourth verdict. When the ease was first brought to this court, it was upon exceptions taken to the instructions of the court below, and it was reversed for error in the instructions. 26 Miss. 35. On its second presentation here, it was revei-sed, because the evidence in behalf of the plaintiff’s lessor was insufficient to support the action. 28 Miss. 710. And when it was last here, it was brought up and reversed, upon the ground of the improper exclusion of evidence offered in behalf of the defendant on the trial, and to which exclusive exception was taken.
It is not, therefore, a case wherein two new trials have been granted, within the meaning of the statute forbidding the granting of more than two new tiñáis in one cause, on the application of the same party. Upon the first and third trials, no motion was made for a new trial; but special exceptions were, taken to the erroneous rulings of the court upon those trials; and upon those exceptions the case was heard and reversed here. The statute forbidding more than two new trials to the same party in a cause, had reference to new trials granted in the court below upon the application of the party. But it does not apply when there have not been two new trials granted to the same party in the court below, or to cases ivhere special exceptions are taken to rulings of the court, upon questions of law, made during the trial, upon which alone the case is brought here, and is reversed and a venire de novo awarded. In such cases, new trials may be awarded, upon reversals of judgments in the same cause, by this court, whenever it appears that the court below has erred upon points decided upon the trial, and to which exception is taken upon the trial in the court below. Ray v. McCary, 26 Miss. 404; Garnett v. Kirkman, 33 Miss. R. 389.
The judgment is reversed, and the cause remanded for further proceedings.
