Gerard v. Gill , 195 Miss. 726 ( 1943 )

ON SUGGESTION OF ERROR. A temporary injunction was issued and served pending the hearing in the lower court. The decree of that court had the effect to dissolve the injunction, and, upon reversal, we ordered the injunction reinstated and made permanent. The order entered on our minutes, so far as material to the principal point made in the suggestion of error, recites as follows: "That the appellees, Luther Gill and Mrs. Ida Gill and each of them . . . are hereby enjoined and restrained from interfering with . . . the appellant Mrs. J.A. Gerard . . . in going on, over and across the following described land . . . for the purpose of cutting and removing from the land aforesaid all the timber and timber like trees measuring eight inches and over growing and lying on said land, etc." The order, as to the features quoted, is substantially in the same language as that contained in the temporary injunction.

The main point in the suggestion of error is that this order, as it now reads, will permit the cutting of timber which was not as large as eight inches in diameter at the date of deed which was August 27, 1935, but which has grown to be of that size since the deed date, and cases such as Robertson v. H. Weston Lumber Co., 124 Miss. 606, 87 So. 120, and Armstrong v. Jones, 177 Miss. 359,170 So. 637, are cited in support of the suggestion. This matter was not mentioned either in the pleading or in the briefs on the original hearing; but we called for a response to the suggestion of error, to which appellant has replied that she makes no claim to any timber that was not of the stipulated dimensions on August 27, 1935, and consents that the injunction decree may be redrawn so as to insert that restriction.

We, therefore, direct that the decree entered by us on a former day shall be set aside and another decree entered in the same words and figures, except that instead of the words "trees measuring eight inches and over," the words shall be "trees which on August 27, 1935, measured eight inches and over, but not those which since that date have grown to the size mentioned." In all other respects the suggestion of error is overruled.

So ordered.