Jackson v. Redding , 162 Miss. 323 ( 1931 )

ON SUGGESTION OF ERROR. The appellant filed a suggestion of error, and the appellee also filed one. The appellant challenges the closing part of the judgment on the motion to quash, which provides: "That no further execution be issued out of this court, upon said judgment against said United States Fidelity Guaranty Company for said 1057/1507 of said judgment and costs, adjudged against it on its forthcoming bond for said excavator, so long as it appears that no benefit could be had by the plaintiff through the sale of said excavator under said judgment."

It is contended that, under this provision of the judgment, the learned court below had modified the judgment upon which the execution was issued after it had become final, and, if allowed to stand, in effect, it would modify said judgment. It is also contended, on behalf of the plaintiffs in execution, that the judgment is correct, in that the court had full control over its process to prevent injustice.

We think this portion of the judgment was beyond the power of the court to make upon a motion to quash, and that it should be treated as surplusage.

In order to modify an original judgment after it has become final, proceedings must be had directed to that end, either under the statute or in some direct proceeding seeking to correct the judgment, if that may be had, as to which we express no opinion.

The affirmance of the judgment was correct, but the part quoted above is not properly a part thereof, and will not prevent taking any appropriate further action.

Suggestion of error overruled.