1. APPEAL AND ERROR.
Where execution for costs was issued against appellee and returned nulla bona, whereupon appellant paid costs and appellee did not make reimbursement therefor, so that under Supreme Court rule the mandate was not sent down, jurisdiction of the cause remained with the Supreme Court, in order to make the rule effectual (Supreme Court Rule 29).
2. APPEAL AND ERROR.
Parties involved in an appeal may substitute an agreed judgment for that entered by the Supreme Court, after the end of the term, especially where the agreed judgment will put an end to the litigation.
3. APPEAL AND ERROR.
Where judgment was reversed with order of remand to trial court, but mandate was not sent down and the jurisdiction of cause remained with the Supreme Court, motion made at a subsequent term to modify the judgment previously entered and to enter instead a judgment reversing cause and dismissing it on merits, which was agreed to by the appellee and approved by his attorney of record, was sustained.
Griffith, J., delivered the opinion of the court.
The judgment in this case was reversed on November 2, 1925, with an order of remand to the trial court. Mobile Ohio R. Co. v. Flannagan, 141 Miss. 7, 105 So. 749. Execution for cost was issued against appellee and was returned nulla bona, whereupon appellant paid the costs, but appellee has never made reimbursement therefor, so that under Rule 29 of this court, the mandate has not been sent down, and in order to make the rule effectual, jurisdiction of the cause still remains with this court.
Appellant now moves the court to modify its judgment entered at the September, 1925, term and to enter instead at this time a judgment reversing the cause and dismissing it on the merits; and along with its motion appellant has filed and exhibited a written consent by appellee, signed and acknowledged before a notary public, and approved by his attorney of record that the judgment of dismissal on the merits may now be so entered.
There is a division among the authorities whether, after the close of a term of court, a judgment rendered at that term may be vacated and another judgment entered at some subsequent term, on the voluntary consent of the parties. See 31 Am. Jur., p. 276. However, in Whittington v. Simrall, 137 Miss. 511, 514, 102 So. 572, this court has said that "The court may vacate or open a judgment after the end of the term if the parties consent or agree thereto." Inasmuch as they may thus vacate or open a judgment, it would follow with equal reason that by like consent they may substitute an agreed judgment, especially where the latter will put an end to the litigation.
Motion sustained.
Anderson, J., took no part in this decision.