Edwards v. Yazoo & M. V. R. , 112 Miss. 791 ( 1916 )

SteveNS, J.,

delivered the opinion of the court.

• (After stating the facts as above). The judgment rendered by the trial court in each of the two suits here argued and submitted together must be reversed. The first .action filed by appellant was by a solemn judgment .of -the court dismissed without prejudice, and the court, after the rendition of this judgment, adjourned for the term. The judgment designated by counsel as a judgment nunc pro tunc was entered at a subsequent. term, and shows upon its face that it is not in fact the rendition of the judgment which the court had, by inadvertence or otherwise, failed to enter, but. is the substitution of a judgment in direct conflict with that previously entered. The court by the second judgment, undertakes to reverse the ruling of the trial judge .who granted the plaintiff, a nonsuit and who entered upon the minutes of the court a judgment of nonsuit in due form. The court was not confronted with a. situation where no judgment at all had been entered, or even a situation where there was a clerical error or mistake appearing upon the face of the. record. The circuit court in entering this judgment mono pro tunc undertakes to review and- pass upon the propriety of its former rulings made and entered at a previous term, and in reference to a case over which it no longer had jurisdiction. We are constrained to hold,, therefore, that the second judgment entered in the first suit does not possess the essential characteristics of a judgment nunc pro time,. and was and is a nullity. The court had no jurisdiction to render such judgment. The judgment first entered must speak for itself, and it shows conclusively that the plaintiff was granted a nonsuit, and the fact that the court did grant a nonsuit is not disputed by counsel for appellee. The record shows that counsel for the defendant strenuously' objected to the entry of this judgment of nonsuit and that the judgment was entered against their protest. There is accordingly no mistake about the intention of the court to grant such judgment.

More than this, we see no impropriety or error on the part of the trial judge in allowing the plaintiff to take a nonsuit under the circumstances disclosed by the record. It is admitted by counsel that the application for a judgment nunc pro irme was based upon the decision of this court in Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736, which was not before the trial court when the first judgment was entered. The question presented for decision in that - case was. whether or not the trial judge erred in declining to allow the plaintiff to take a nonsuit, after he had granted a peremptory instruction in favor of the defendant. The decision of the one and only point at issue in that case was correct. We do not construe the decision as holding that thé circuit judge, after announcing his intention to grant a peremptory instruction for the defendant, or even after marking' the written instruction, “Given,” could not change his opinion or ruling and withdraw the instruction or grant the plaintiff a nonsuit, provided always this is done “before the jury retire to consider of its verdict” in accordance with the express provisions of section 802 of our present Code. The court did decide in the Schaffer Case, and correctly so, that it is not necessary for the jury actually to retire to the jury room to consider a peremptory instruction. Certain it is, however, that before the law is given in charge to the jury, the whole law of the case is within the breast of the trial judge and under his control. It was never the purpose of the law to take snap judgment against a litigant, and for this cause section 802 expressly recognizes the right of every plaintiff to suffer a nonsuit before the jury retire to consider of its verdict. This was expressly recognized by this court in G. & S. I. R. R. Co. v. Williams, 109 Miss. 429, 69 So. 215. We tried to make this point clear on the suggestion of error in that case. The court, therefore, did not err in granting the judgment of nonsuit reflected by the record in the first case now before us.

What we have said disposes of the contentions in the second action. It necessarily follows that the second suit was an action properly brought and pending, and should have proceeded to a trial upon the merits. The sustaining of appellee’s plea or res ad-judícala constitutes error for which this cause also must be reversed. Appellant in appealing the first suit challenges the court’s ruling in granting the peremptory instruction, and counsel for both sides have argued the facts and merits of the case. Our views on the law questions presented render it unnecessary to comment upon the facts.

The judgment in the suit first prosecuted, being here No. 18705, will be reversed, and judgment entered here in favor of appellant upholding the judgment of nonsuit. ■ The judgment in cause Ño. 18703 will be reversed and remanded for trial upon the merits. •

Reversed and remanded.'