Woods v. Cheesborough

48 So. 613, 95 Miss. 63

Opinion

Fletoiier, J.,

delivered tbe opinion of tbe court.

In October, 1891, tbe Southern Pine Company, appellees’ predecessor in title, filed a bill in the chancery court of Marion county against appellants, dealing with the identical lands here in controversy. The Southern Pine Company claimed by virtue of patents issued by the state of Mississippi subsequent to 1871, and appellants claimed title by virtue of the Pearl Fiver Investment & Navigation Company act of 1871, dealt with in the case of Hardy v. Hartman,

* 65 Miss. 504, 4 South. 545. The case was continued from term to term, at some of which orders were taken and pleadings filed, until the July term, 1896, when a final decree was rendered on “original and amended bill of complaint, and exhibits and documentary evidence, and tbe answer and cross-bill and exhibits thereto', and tbe answer to cross-bill and exhibits,” upholding and confirming the title of the Southern Pine Company to all the lands now in controversy and canceling the title of appellants to the same. This decree was not appealed from within the two years allowed by the law for taking appeals. In 1902, six years after the rendition of this final decree, appellants, defendants in the former proceeding, filed their original bill against the successors in title of the Southern Pine Company, seeking a cancellation of the same title involved in the previous litigation. Being met by a plea of res adjudicaia, appellants' in 1904 filed their amended bill, seeking to have the decree of July, 1S96, set aside because the attorney in charge of the earlier litigation was too ill to give the case the proper attention.

It is shown that notice of the fact of the attorney’s illness came to the knowledge of appellants in January, 1901, three and one half years before it was sought to set the decree aside. Pa this state of facts there is no escape from the authority of Brooks v. Spann, 63 Miss. 198, and an attentive examination of that case will show that it can make no difference whether the amended bill is or is not technically a bill of review. Furthermore, we do- not think there is such diligence shown by appellants in this case as would entitle them to- vacate the former decree, even though no statute of limitations barred the way. We cannot see our way clear to go further than this, and decide the other important and interesting questions presented, since the action of the court in upholding the plea of res adjudicada disposes of the case.

Affirmed.

The views of the Federal courts on the Question decided in Hardy v. Hartman may he seen hy reference to Bradford v. Hall, 36 Fed. 801, and Southern Pine Co. v. Hall, 105 Fed. 84, 92, S. C. 180 U. S. 639, where a writ of certiorari was denied.