Merchants & Farmers Bank v. Norment

delivered the opinion of the court.

There was no error on the part of the trial court in overruling the application to amend the final decree. The petition was filed under section 1016, Code of 1906, and the only testimony iii support of the petition was the oral testimony of the former chancellor of the district. It is true the chancellor, in testifying, stated that be made a pencil memorandum of his calculations at the time he prepared the final decree, but these alleged notes of the chancellor were not made a part of the petition as an exhibit or otherwise. They were not in possession of the witness at the time he testified, and were not in court at the time Chancellor McIntyre heard the motion. It does not appear that this memorandum had ever been “among the records of the proceedings.” The chancellor was justified in declining to sustain the motion to correct the final decree; at least we cannot reach the conclusion that he was manifestly wrong.

On the merits, the decree appealed from should be •reversed, and the cause remanded for a new trial. Error Avas committed in excluding the agreement'dismissing the appeal in cause No. 1984, especially in vieAV of the ruling of the court making the final decree that was rendered in the present suit conditioned on the prosecu*416tion of the appeal in the former case, No. 1984. It was, in our judgment, error to attach any conditions whatever to the decree finally rendered by the court, to the effect, so long as an appeal of the former- suit was pending, “that no liability shall rest or be vested by this decree, because there could be no measure of liability in this case so long as that case is pending.” Recovery in the instant case should be based upon the proof, and the decree, as to its terms, should be definite and final. We see no error in permitting the record in cause No. 1984 to be introduced as a part of the evidence in the present case.

It appears to us that the learned chancellor before whom this cause was tried resolved the facts in favor •of appellant, but that his decree fails to take account of the four hundred and eighty-three dollars and ten cents to the credit of appellee Norment in the bank at the time this suit was filed. After the institution of this suit, appellee had given bond, and on the faith of this bond had been permitted to withdraw these funds. The final decree does not mention this bond, and we see no reason why the chancellor did not permit recovery on the bond. In the oral testimony of the chancellor taken upon the motion to 'correct the decree, he states that:

“He credited Mr. Norment with five hundred dollars that was shown by the proof to have been in the bank; . . . there being no bond of any kind in reference to this matter introduced in the trial or my attention •called to the fact.”

Of course, this oral testimony of the chancellor is not controlling here in our analysis of the facts, but in a ■court of equity it should at least point us to the testimony and prompt us not too strongly to indulge the presumption that the decree of the chancellor in the present case is correct. Here the chancellor frankly admits a mistake in calculation. It is not clear just how the chancellor arrived at the sum of one hundred and *417ninety-four dollars and sixty-six cents, the amount of the final decree. Even though the chancellor had intended to award recovery for only one hundred and ninety-four dollars and sixty-six.cents, appellant was entitled to a judgment upon the bond for this amount. The bond was given in consideration of a release of the garnishments, and the express condition of the bond is that appellee “shall settle and pay and discharge and comply with any and all judgments and decrees that may be rendered against him in the aforesaid cause.” The decree appealed from will be reversed, and the cause remanded for a new trial.

jReversed and remanded.