Evans v. Southern Railway Co.

74 Miss. 230

• Court: Mississippi Supreme Court
• Decided: October 15, 1896
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion of the court.

The court below, upon reversing the judgment, should then have proceeded to £ £ try the cause anew on its merits, ’ ’ allowing the amendments asked. We do not think it would have been proper to render a judgment by default in the circuit court, cutting the defendant off from contesting liability. Negligence was the gist of the action. Railroad Co. v. Fort, 44 Miss., 423. The statute (code 1892, §89) means that if the circuit court could see, from the record and proceedings alone, what final judgment, as an entirety, the justice should have rendered, that judgment shall be entered up by the circuit court; but there was nothing in the record or proceedings alone from which the circuit court could see what final judgment should have been rendered by the justice of the peace. When, on reversal, it is apparent what final judgment the justice should have entered, from the record and the proceedings alone, the circuit court should enter that judgment; such judgment not being interlocutory merely, but disposing of the case. But that was not the case here. There had been no proof of value, and if there is to be any judgment rendered at all by the circuit. court upon reversal, other than such as could be rendered on an inspection of the record and proceedings, then there must be a trial “anew on the merits” — on the whole merits — liability and value in this case. The court below should proceed with the trial. See, also, 4 Enc. Pl. & Prac., 298, 299, 303, 305; Perry v. Rohde, 20 Tex., 729.

Reversed and remanded.