Davis v. McCullers

Mississippi Supreme Court
Davis v. McCullers, 132 Miss. 572 (Miss. 1923)
97 So. 8; 1923 Miss. LEXIS 90
Ethridge

Davis v. McCullers

Opinion of the Court

Ethridge, J.,

delivered the opinion of the court.

On the first appeal of this case the judgment was reversed and the cause remanded for a new trial. Hines v. McCullers, 121 Miss. 666, 83 So. 734. On the reversal and remand of the case to the circuit court, there was a second trial, with a verdict in favor of plaintiffs against the director general for fifty thousand dollars; which cause was appealed, and an affirmance with a remittitur of twenty-five thousand dollars was entered on July 11, 1921, on which date the following order was entered here:

“This cause having been submitted on a former day of this term on the record herein, from the circuit court of Coahoma county, second district, and this court having *575sufficiently examined and considered the same, and being of the opinion that the judgment is excessive, doth order and adjudge that, if appellee will remit the sum of twenty-five thousand dollars, the judgment of said circuit court will be affirmed for twenty-five thousand dollars, and appellees having now, here in open court, entered a remittitur for said sum of twenty-five thousand dollars, it is ordered and adjudged that the judgment of said circuit court rendered in this cause at the May term, 1920, on the 29th day of May, 1920, be and the same is hereby affirmed for the sum of twenty-five thousand dollars, and that appellees do have and recover of appellant said sum of twenty-five thousand dollars as well as interest on the amount of said judgment from May 29, 1920, until paid, at the rate of six per cent, per annum, and also the costs of this cause in the court below, and that appellees do pay the costs of this appeal to be taxed.”

Thereafter a suggestion of error was filed and overruled, and in September, 1921, negotiations were enterd into, looking to a compromise and settlement of this judgment, and a settlement or agreement was reached on September 6, 1921. At the time of this settlement in negotiations, it is said that the defendant was preparing to get a review of the case in the supreme court of the United States, and under the practice of that court an application must be made within a limited time. After discussing the matter with counsel for the plaintiffs, one of the attorneys for the defendant in that cause wrote a letter setting forth his understanding of the settlement, which agreement was not reduced to writing. And thereupon a voucher for twenty-five thousand nine hundred and twenty-four dollars and seven cents was issued by the director general and was turned over to the complainants and their attorneys, who signed a receipt in full, on account of the judgment rendered, including interest, to which receipt wr-as attached a copy of the declaration, the pleadings, and certified copy of the judgment of this court, and the money was collected and distributed among the complainants, *576and the suit of Beatrice McCullers v. Director General for a personal injury growing out of the same transaction Avas dismissed, as had been agreed to in the negotiations and settlement. At the time of delivering the voucher and signing the receipt, a satisfaction of judgment on the record was entered, and a certified copy turned over to the director general. A few days after this transaction of the delivery of the check and the signing of the receipts, the mandate of the supreme court was sent to the circuit court, and then attorneys for plaintiff discovered that the judgment entered on July 11, 1921, bore interest from the 29th day of May, 1920, instead of the 11th day of July, 1921. Thereupon the attorney or the plaintiff wrote the attorneys for the director general demanding a check for the amount that Avould make the difference between the twenty-five thousand dollars, with interest from May 29, 1920, and the amount of the voucher, Avhich was calculated on a basis of from July 11,1921; Avhich the director general refused to pay. Whereupon a motion Avas filed in the circuit court to set aside the cancellation and satisfaction of the judgment, so that the judgment Avould stand on record unsatisfied, but'only credited with the amount paid as above stated. Upon the hearing of this motion the attorneys conducting the negotiations on both sides testified, and they had conflicting understandings as to what the settlement Avas. The attorneys for the appellees testified that their understanding Avas that the director general was to pay the judgment of the court affirmed on July 11, 1921, and which was to be accepted in full settlement not only of this cause, but of the case of Beatrice McGullers v. Director General, pending in the circuit c¿urt. That none of the parties had seen the mandate of this court or the judgment of this court. The testimony of the attorney for the- director general conducting the negotiations Avas that it Avas his understanding that the amount of the judgment with interest from the date of rendition was to be embraced in the settlement.

*577It appears in the evidence of the appellant without dispute that, at the time the receipt was signed and the voucher delivered to the plaintiffs, a copy of the pleadings and judgment of this court was attached to the receipt, and that the receipt provided that it was a payment of the .judgment including interest, to quote from the receipt:

“In full settlement, discharge, and satisfaction of the judgment and the cost (including interest, if any,) rendered in favor of the plaintiff in the case of J. F. McCullers et al. v. Jas. C. Davis, Director General of Railroads and Agent of the United States in the supreme court of the state of Mississippi on or about July 11, 1921.”

The circuit judge sustained the motion, and entered an order directing the setting aside and the cancellation of the order of satisfaction of the judgment entered on the records, and leaving the judgment in force, as though such entry of satisfaction had not been made.

We have given careful consideration to the case and are of the opinion that the circuit court erred in setting aside the order of cancellation and satisfaction of the judgment rendered. It would be impossible to restore the status quo. The director general could not at this tim'e bring an action to review the judgment of this court, and consequently has lost that right, whatever it might be worth, which we, of course, could not say with any certainty. In the second place, at the time of the closing of the transaction, the delivery of the check and payment, and the signing and delivery of the receipts, the proof shows that the judgment of this court showing exactly what was decided was among the papers, and was subject to" inspection. And if the plaintiffs and their counsel did not inspect the papers that was no fault of the director general, and as the receipt given, including the entry of satisfaction on the judgment roll, was founded in a contractual settlement, in which valuable considerations passed between the parties, the settlement cannot now be set aside.

For-the reasons indicated the judgment of the court *578below will be reversed, and an order entered here overruling the motion.

Reversed and judgment here.

Reference

Full Case Name
Davis, Director General of Railroads v. McCullers
Status
Published