Ernest Kellner, Jr., of Greenville, for appellee on plea in bar.
Now comes the appellee, King's Daughters Sons Circle No. 2, by its solicitor, Ernest Kellner, and for a plea in bar of the appeal herein says that said appeal can not be maintained for the reason that only a moot question is presented by said appeal, in that, the only relief sought by the appellant and denied by the trial court can not now be granted to the appellant, and in support of its plea appellee says:
The relief sought by the appellant is in the nature
of the specific performance by the appellee of an alleged contract with the appellant to do the plumbing and heating work in the construction of a nurses home for the appellant in the City of Greenville or for a mandatory injunction requiring the appellee to execute in writing the alleged contract with the appellant and requiring the appellee to permit the appellant to enter upon the premises where the nurses home was to be constructed and to carry out and perform the alleged contract. No other relief is sought by the appellant. Since the institution of the appellant's suit and pending this appeal the nurses home has been completed including the plumbing and heating work contemplated by the alleged contract of the appellant.
R.B. Terry, of Jackson, for appellant.
Appellant submits that this is a court of appellate and not trial jurisdiction, and while appellant recognizes and admits the propriety of a plea in bar being filed in this Honorable Court in certain instances setting out the facts which have developed since the closing of the original record, such as, to wit, "Payment, accord and satisfaction, assignment of a judgment obtained before a hearing had in this Court on Appeal," etc., yet, with all deference, appellant insists that for the plea in bar, such as it was in the instant case and the affidavit in support thereof, to have been considered by this court would constitute this court one of trial jurisdiction and that in support thereof appellant respectfully submits that, by the very plea itself, the facts which were therein set out and relied upon were evidentiary facts which, admittedly by the very averment of the plea itself, had developed and come to pass since the closing of the original record, and, also, admittedly since the appeal herein was perfected, and that to consider the same would have the effect of infusing or injecting into the original record, which had been closed, new evidentiary facts
which no one, in view of the fact that the trial had been had, was or is entitled to submit to this court, and that for anyone to be permitted to do so would, in effect, be a reopening of the case and a retrial of the case in this court, since, as before stated, there were new evidentiary facts which had developed subsequent to the closing of the original record, and to do so would constitute this court a trial court.
Appellant further submits that for this court to have, in any manner, considered or entertained the affidavit of an officer of the appellee corporation as to whether or not the facts averred and set out in the plea in bar were true, would be and is equal and tantamount to permitting the said affiant to come before the bar of this Honorable Court and having been sworn to testify before the bar of this Honorable Court, would be permitted to testify as to the subsequently developed facts, and we submit that in our search of the authorities we have been unable to find where this court, or any court of like character, has ever permitted a witness to testify before it in a case of this character.
Key No. 804, Title "Appeal and Error," Mississippi Digest.
Appellant respectfully shows further that taking the averments of the plea to be true, to-wit, that the prayer of the bill cannot be granted because the structure concerned in the contract, breach of which is complained of in the original bill, has been completed, does not present a moot question to this court, and for this court to so hold would permit many a man to escape a legal liability, if and when sued for specific performance on a contract, by deliberately going ahead and completing whatever manner or means of work which might be concerned in the contract after a suit for specific performance had been filed and he had full knowledge thereof; appellant says that, and more particularly in this case, to say that the appellee, after suit had been filed and
an appeal taken to this Honorable Court, for him to proceed with the completion of the structure, as it is alleged in the plea herein, would be for the appellee "to benefit by his own wrong."
The court has no power to dismiss a case on appeal and order a writ of procedendo to issue, without calling the appellant and giving him an opportunity to defend.
Wilson v. Town of Hansboro, 50 So. 982, 96 Miss. 376 .
This plea was sustained before the time in which he was required to file his appeal brief and assignment of errors, and that the cause has never been before this Honorable Court on its merits.
Appellant says that if this suggestion of error should be sustained, the accrued cost would not be assessed against him and his bondsmen, and that if, on a hearing on the merits, this honorable court should see fit to reverse and remand this cause, that when the mandate reaches the lower court the appellant could thereupon move the honorable Chancellor for leave to amend his original bill so as to set out the facts which have subsequently developed as they are contained in the plea, if they be true, and to amend his plea for relief so as to show that specific performance cannot be had, but that he had actually been damaged in the sum of so many dollars.
Turner Lbr. Co. v. Robinson Land Lbr. Co., 155 Miss. 882 ; Turner Lbr. Co. v. Robinson Land Lbr. Co., 125 So. 89 ; Farmer v. Allen, 85 Miss. 672 ; McCaskey Register Co. v. Swor, 154 Miss. 396 ; Guice v. McGehee, 155 Miss. 858 ; Sinquefield v. Vallentine, 159 Miss. 144 .
Appellant says that a plea in bar and an affidavit in support thereof, were filed by the appellee herein and that upon consideration of both thereof, the said plea in bar was sustained and this appeal dismissed without prejudice, the effect of which is to assess against this appellant the costs herein, and appellant respectfully
submits that the court erred in such action for the reason that the effect of such action is to assess against him the costs herein accrued, and that if he had a cause of action in the lower court, or if this court was correct in sustaining the plea in bar and dismissing the cause without prejudice, which indicates to our minds that the court recognizes that appellant herein had a good cause of action which can be brought, that this appellant should not be burdened with the costs of this appeal and, as above stated, the appellee herein be permitted to profit by his own wrongs.