Wailes v. Johnson

25 Miss. 421

• Court: Mississippi Supreme Court
• Decided: April 15, 1853
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

We do not think it necessary to decide, on this motion, whether we have the power to make the modification in the decree at the present time, or not. Certainly, such a modification should never be made so long after the decision of a'' case in this court, unless it be absolutely necessary in order to prevent injustice being done in the premises. We do not think this case occupies that attitude.

By the decree remanding the cause and directing a foreclosure of the mortgage in the chancery court, we did not intend to take away the power which belongs to the chancellor, of allowing amendments in the pleadings, or to make such other orders in the case as the equity 'and right of the case may demand, and the rules of practice in the chancery court allow.

This power the chancellor now has, as fully in this case as in any other pending in that court. The only effect of our mandate is to require him, upon the state of the pleadings and proof remaining the same as it was when decided by the high court, to render the decree directed by the mandate.

Let the motion be overruled.

Smith, C. J., gave no opinion, being interested in the cause.