Gusdofer v. Gundy

72 Miss. 312

• Court: Mississippi Supreme Court
• Decided: October 15, 1894
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion of the court.

This is not a bill of review. We have nothing in the former record before us except the decree. It does not seek to re-open the decree and vacate it entirely (the purchaser is not a party defendant), but only to set it aside so far as may be necessary to enable the complainants to obtain a personal decree against appellant for nine hundred and twenty-five dollars, being two-sevenths of the five hundred and twenty-five dollars paid appellant out of the proceeds of the realty, and of the amount received by him from the insurance on the gin bouse on said realty. The decree by consent was manifestly erroneous; but the question here is not one of error or no error. The complainants here were, jointly with the adult heirs, complainants in the bill resulting in said former decree — actors therein, affirmatively invoking the jurisdiction of the court. No fraud or collusion is alleged, and whilst it is alleged that these complainants thought the personalty was the property of themselves and their adult co-complainants, and thus mistook their legal rights, that bare statement is . all that appears on that subject. From the terms of the decree, it seems that the personalty was taken from appellant.

We think the case is governed by Johns v. Harper, 61 Miss., 142. See, also, Ewell’s Leading Cases on Infancy, etc., note, p. 236 and authorities, and Black on Judgments, vol. 1, §§ 197, 198. Without prejudice to such rights against the decree as the infants may have, the decree is

Reversed, demurrer sustained and MU dismissed.