Musgrave v. Powel ( 1871 )

Opinion op the Court by

Judge Lindsey:

By a former opinion of this court reversing a judgment’ of the court below, it was directed that upon the return of the cause, that unless either Sharp or Higden removed the lien held on the land by Griffith’s executors, the contract of sale by Higden to the Powers should be rescinded, upon equitable terms. Such an order implied that the parties were to have a reasonable time within which to discharge said lien. Ordinarily, actions do not stand for trial at the term of the court at which a mandate of this court reversing a former judgment in the case is filed, but it seems that in this case the court proceeded at once to render a judgment rescinding the contract of sale to the Powers and enforcing the lien of Griffith’s executors. Whether or not this fact of itself would be sufficient to authorize a reversal of the judgment by this court it is not necessary to decide, as the judgment must be reversed for another reason. It does not appear from the record, that either Sharp, the vendee of Griffith’s executors, nor Higden, his vendee, were before the court by service of process, nor that either of them were parties to the former appeal. It was, therefore, erroneous to render a judgment at all, as the rights of the parties could not be finally determined. Wherefore, said judgment is reversed, and the cause remanded for proper proceedings.

Little, for appellant. Turner, for 'appellee.