Crane Bros. & Co. v. Richardson , 73 Miss. 254 ( 1895 )

Woods, J.,

delivered the opinion of the court.

From the agreed statement of facts in the record, it appears that judgment by default was rendered in the circuit court of Yazoo county, on September 16, 1891, for the sum of $2,000, in favor of James S. Richardson, the appellee herein, and against one S. T. Ricks, and that this judgment was enrolled on September 17, the day next after its rendition. It further appears that a motion was made at the same term of said court to vacate and' set aside this judgment, but the same was continued to the next ensuing February term of that court. At the February term the motion to set aside the judgment was overruled, but the judgment, to quote the exact language of the agreed statement of facts, ‘ ‘ was allowed to stand for $1,000.” .

The question that lies before all others is, was the judgment rendered September 16, 1891, for $2,000, a final judgment, which might be properly enrolled, and which gave priority of satisfaction to Richardson, the plaintiff in that suit, over Crane Bros. & Co., who obtained judgments against Ricks, before a justice of the peace of the county, on November 17, 1891, and had the same duly enrolled on the day following, to wit, November 18, 1891 ? The correct answer to this question should be made without serious difficulty. The motion to set aside the judgment for $2,000, rendered at the September term, was continued for hearing and determination, by the court which rendered it, to the next term of that court, whereby that court retained plenary control over the judgment. The cause itself was kept in court, and upon the docket, and the power to vacate and set aside, in whole or in part, the judgment which was sought to be vacated clearly remained in the court. The motion thus continued prevented the judgment becoming a finality in the litigation, and left the whole matter largely to the future action of the court. As matter of agreed fact, the court did hear the motion, and did take action thereon overruling the motion to wholly set aside the judgment, but materially modifying'it by reducing it to $1,000. Upon this action of the court a final determination was had of the matter in controversy, and, for the first time, there was a judgment from which an appeal would lie. Until the motion to vacate the judgment had been heard and determined and overruled, followed by that which in effect was a judgment for $1,000 only, incontrovertibly no appeal could have been taken. From every final judgment, however, an appeal lies, and, applying this test, the judgment for $2,000 was not final. It was not final, moreover, as we have already intimated, because the court rendering it, by continuing the motion to vacate it to the next term, retained control of the cause with a view to further action in it on the merits, and actually took such action as reduced the judgment by one-half, notwithstanding the motion was denied. No judgment can, in any proper sense, be denominated final where the court retains full control of the litigation, and where other action by the court remains to be taken to put an end to the controversy.

The judgment of September 16, for $2,000, was not final, and was not enrollable. The judgment of the court in February, 1892, for $1,000, was the final judgment in the cause, and was enrollable.

It follows that the judgment liens of Crane Bros. & Co., secured on November 18, 1891, are superior to that of the appellee. See 12 Am. & Eng. Ene. L., 63, par. 3; Freeman on Judgments, §§ 16-34; Kinney v. Railroad Co., 73 Ala., 536; Tinly v. Martin, 80 Ky., 463; Windett v. Hamilton, 52 Ill., 180; N. Y. Railroad Co. v. Doane, 105 Ind., 92.

Reversed cmd remanded.