Opinion
No. 36630.
January 12, 1948.
APPEAL AND ERROR.
A decision of the Supreme Court, reversing decree and remanding cause for error in sustaining motion of defendants to exclude evidence offered by complainant to show that foreclosure sale was invalid, did not constitute a final adjudication in favor of complainant but required new trial upon which complainant would be entitled to introduce his evidence anew, together with such additional evidence as he might desire to offer and upon which defendants would be allowed to meet proof offered by complainant.
APPEAL from the Chancery Court of Grenada County.
Cowles Horton, of Grenada, for appellants.
The suit was begun by Clark in the chancery court to set aside a foreclosure sale under a deed of trust executed by Dora Carpenter. Clark alleged that the notice of sale was not properly posted at the courthouse and the the trustee did not offer the eighty acre tracts of land as an entirety but sold each eighty acres as a separate tract. By proper pleading the defendants to Clark's bill properly denied his allegation and the case went to trial thereunder. On that trial Clark presented all his proof and the defendants made their motion to exclude same and grant them a decree. The court sustained said motion and Clark appealed to this Court. This Court reversed the decree of the chancery court against Clark. After the remand the case came again before the chancery court and the defendants requested to be allowed and offered to prove as a fact that the land was offered and sold in the proper way and not as stated by Clark's witnesses. Such testimony would have presented a clear issue of fact for the decision of the trial court and defendants, we submit, were entitled to a decision on this issue. Clark, however, moved the court for a decree avoiding the sale entirely and directing a sale of the land by a commissioner upon the sole fact of the former reversal and remand on the opinion delivered on the appeal in that cause. The learned court below refused to permit the defendants in the case to introduce any witness whatever and held that the opinion of this Court had finally determined that the trustee's sale was void. Its position was that under the opinion of this Court it had no right to hear any testimony for the defendants at all. So holding, it was inevitable, of course, that a decree against defendants should be rendered even if the trustee's sale had been made exactly as the law required. From the decree so rendered the defendants, these appellants, have appealed and submit, with deference, that the learned court below was in error in its action.
The court erred in refusing to allow appellants to introduce their evidence on the hearing of this cause after the remand thereof to said court by this Supreme Court.
Clark v. Carpenter et al., 201 Miss. 436, 29 So.2d 215; Wailes v. Cooper, 24 Miss. 208; Haines v. Haines, 98 Miss. 830, 54 So. 433; Middleton v. Davis, 105 Miss. 152, 62 So. 164; Peoples Bank in Liquidation v. Pennington, 137 Miss. 653, 102 So. 386; Pigford v. Ladner, 142 Miss. 435, 107 So. 658; Sperry's Estate v. Sperry, 189 Miss. 321, 196 So. 653; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Code of 1942, Sec. 1312; Griffith's Mississippi Chancery Practice, Secs. 584, 696 et seq.
The court erred in ordering the sale of the property involved as shown by the record herein without allowing appellants to introduce their proof as requested by them after the remand of said case.
Partee v. Pepple, 197 Miss. 486, 20 So.2d 73; Kendrick v. Hales (Miss.), 28 So.2d 574; Code of 1942, Sec. 1312.
Stone Stone, of Coffeeville, and W.M. Mitchell, of Grenada, for appellee.
The prior decision of this cause in Clark v. Carpenter, 201 Miss. 436, 29 So.2d 215, constitutes the law of the case. The lower court on remand was correct in overruling the motion of defendant and in holding the sale void.
Clark v. Carpenter, supra.
On the former appeal of this case, the decision of which is reported in Clark v. Carpenter, 201 Miss. 436, 29 So.2d 215, we reversed and remanded the cause on account of the error committed by the trial court in sustaining the motion of the defendants to exclude the evidence then offered by the complainant whereby he sought to show that the foreclosure sale in question was invalid. We were of the opinion that the evidence, which was then undisputed, was sufficient to show that the land had not been offered for sale in the manner required by law, and that the foreclosure of the deed of trust was therefore void.
On remand the trial court, without hearing further evidence, rendered a decree ordering that the deed of trust be again foreclosed upon the theory that our holding to the effect that the motion to exclude the complainant's evidence should have been overruled and our statement in the opinion that the sale was void under the proof then offered by the complainant, amounted to a final adjudication in that behalf, when as a matter of fact the status of the case on remand was the same as if a peremptory instruction had been erroneously granted in favor of a defendant in a circuit court.
In the case of Partee v. Pepple et al., 197 Miss. 486, 20 So.2d 73, 79, where a motion was sustained to exclude the complainant's evidence and he appealed, it was stated that: "It is well established that in such case, if the motion is overruled in the circuit court, then the defendant may proceed with the introduction of his evidence. On the other hand, where such a motion in said court is erroneously sustained, and the plaintiff appeals, we would not render final judgment here, on the theory that under the proof made by the plaintiff he was entitled to recover, but would reverse the case for a new trial. Applying this rule in chancery, it follows that the instant case should likewise be reversed and remanded for a new trial."
The case must, therefore, be again reversed and remanded for a new trial when the complainant will be entitled to introduce his evidence anew, together with such additional evidence as he may desire to offer, and the defendants be allowed to meet the proof offered by the complainant by showing that the land was offered for sale in a lawful manner instead of the way it was shown to have been offered by the complainant's evidence on the former trial.
Reversed and remanded.