Griswold v. Simmons

Tarbell, J., delivered the opinion of the court. [125] Submitted under rule 22. This cause bas been once before in this court, when the decree of the chancellor on the merits was affirmed. It comes here now on appeal to the decree confirming the report of the commission of the sale of the premises sold in obedience to the final decree affirmed by this court. It is specially objected to the decree now appealed from, that it directs the comm.ssioner making the sale to put the purchaser in possession; that it awards a writ of assistance, and decrees costs. The decree is, that the commission to sell the lands, put the purchaser in possession ; “ if necessary,” that the writ of assistance be awarded, and “ that the defendants herein, and their sureties on their appeal or writ of error bond to the supreme court, do pay all the costs herein.” If ever, it is not now a mooted question, with us, that when equity has jurisdiction of a cause, it will retain it for all the legitimate purposes of the proceeding; or, in other words, it will retain jurisdiction in order to administer full relief. 10 S. and M., 184; 34 Miss., 655; 27 ib., 419; Wilson v. Polk, 13 S. and M., 131; 33 Miss., 153. And this includes, in proper cases, the delivery of possession of real estate. Daniel’s Ch. Pr.; Barb. Ch. P.; Code, § 1267 ; 13 S. and M., 132; 2 Smith’s Ch. Pr. No part of chancery practice is more familiar or better established than the writ of assistance. See Code of 1857, p. 555, art. 98, where this writ is expressly provided for by its name, habere facias passionem, to be issued of the court of chancery, while § 1267 of the code of 1871, provides, that the clerk of the chancery court “ shall issue all final process of every kind known to the law, which may be necessary to execute the decrees and judgments of the court.” The writ of assistance is a process “ well known to the law.” 2 Daniels Gh. Pr., 1082, and notes; 2 Barb. Oh. Pr., 441. This writ is issued upon proof of noncompliance with the orders or decrees of the court, on demand of obedience thereto., 2 Barb. Ch. Pr., supra. By the clerk. Code, § 1267. And is executed by the sheriff, or by a commissioner named in the decree, lb., 1266. [126] In the case at bar, the decree directs the writ to issue, “ if necessary.” As'to costs, the decree simply complies with the mandate of this court, or directs the clerk of the chancery court to comply therewith. The taxation of costs against the party and his sureties, followed the mandate of the appellate court, as of couráe. And this is the whole of the decree as to costs. Goff v. Robins, 33 Miss., 153, is referred to by counsel, for the doctrine, that after final decree, the jurisdiction of the court ceases. In that case, however, it is held, that the jurisdiction of a court of chancery ceases after a final decree, when there is nothing to be done in execution of the decree; but when, in order to give the successful party the benefit of the decree, it is essential that it be executed, jurisdiction does not cease until such execution has been had; nor is it necessary to continue a cause upon the docket, in order to preserve the jurisdiction of the court for the execution of the decree, though it would be the more regular and formal mode of proceeding. In Hill v. Richards, 11 S. & M., 194, the cause had been dismissed, and jurisdiction lost of course. The question in Wilson v. Polk, 13 S. & M., 131, was, whether a stranger to the proceedings, becoming a purchaser of land at a sale under a decree of the court of chancery, was entitled in his own name to a writ of assistance. It was held, that the purchaser, who was not a party to the original suit, could only proceed by getting the vendor to make application for the process. In the case at bar, the complainant became the purchaser, and the defendant alone is complaining of the order of the chancellor appealed from. The complainant, in a written petition praying the confirmation of sale, asks for the writ of assistance, which was awarded “ if necessary.” Upon filing with the clerk proof of service of the-order of the'chancellor upon the defendant, and demand of possession, and his refusal to surrender, the writ would issue. Decree affirmed.