Nutt v. Knut

84 Miss. 465

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Cali-ioon, J.,

delivered the opinion of the court.

The first assignment of error is in these words: “First— The court erred in refusing to dismiss the petition of appellee, and in rendering any decree whatever in favor of appellee against John K. Nutt, administrator d. b. n. c. t. a. of estate of Haller Nutt, deceased.” We cannot consider this, nor entertain the attempted appeal as to it, as we are without jurisdiction. It is an effort to relitigate an adjudicated controversy.

Heretofore, in this same case, with the same parties, in the same court from which comes the present attempted appeal, the petition referred to in the foregoing assignment of error was dismissed and appeal taken. On that appeal (Knut v. Nutt et al., 83 Miss., 365, s. c., 35 South., 686) this court reversed that decision, sustained the petition of S. P. Knut, and ordered a final decree here as follows: “Reversed and decree here that S. P. Knut is entitled to his prayer for 33-J per centum of the amount collected by the administrator ($89,-993.83) in full for any advances made by him and all services rendered, and remanded for account to be taken accordingly, and for order that any balance of this per cent unpaid be paid to him by the administrator. Oosts of both courts to be taxed on appellees.”

The final decree here, according to this order, was entered on December 7, 1903, and the term expired March 6, 1904, and we are powerless now to change the law of the case pronounced at that term, even if we doubted its correctness, which we do not. So, as to that, there can be, and therefore is, no appeal pending. There was no motion for rehearing, nor suggestion of error presented. B. & A.’s Dig., 673, clause 49 et seq., citing Le Blanc v. Railroad Co., 73 Miss., 463, s. c., 19 ; Lane v. Wheless, 46 Miss., 666; Cotten v. McGehee, 54 Miss., 621.

Iu accordance with the mandate of this court, the court below proceeded to do all it could do, and that was to have an account taken and order the balance to be paid by the administrator to S. P. Knut. In doing this there was, on the face of the record in the present appeal, manifest error, by clerical misprision or inadvertence no doubt, in that the decree was rendered for $36.88 too much. It apparently should have been for $22,106.46, but was for $22,143.30, and this slight discrepancy is the basis of the second assignment of error, which is well taken, and for this the decree below is reversed, and we order a decree here for $22,106.46 against John K. Nutt, administrator de bonis non cum testamento annexo of the estate of Haller Nutt, deceased, in favor of S. P. Knut, and that the costs of this appeal be taxed against S. P. Knut, the appellee.