ON SUGGESTION OF ERROR. Appellees filed no brief in this case and made no oral argument. They now appear, however, and file a suggestion of error. Attached to the suggestion of error are two affidavits, alleging that since the judgment in the trial court the case has been settled and that in this settlement there was an agreement that no appeal could be taken. This is the first time, and the only way in which, the alleged settlement has been brought to the attention of the court. *Page 400
The court will rarely consider new points for the first time presented on a suggestion of error. Eady et al. v. State (Miss.), 122 So. 199, and, for the stronger reason, it will be a much rarer case when the court will entertain a suggestion of error presented on behalf of a party who filed no brief and made no argument on the original submission, and who, up to the time of the decision of the case on appeal, had paid no attention to the appeal. 4 C.J., p. 627, et seq.
When matters occur subsequently to the judgment which operate to waive the right of a party to have the judgment reviewed and these matters do not appear in the transcript of the record — and such matters would seldom properly so appear — the objection to the appeal must be raised by a plea in bar of the appeal; the said plea to be filed and prosecuted in this court, since it would go solely to the appeal. 4 C.J., p. 589; Adams v.Carter, 92 Miss. 578, 46 So. 59; Farmer v. Allen, 85 Miss. 672, 38 So. 38. And certainly the plea should be filed before submission; and no event occurs to us now as being sufficient to allow such a plea to be considered after decision has been rendered and judgment entered in this court on the merits of the appeal.
The substantial reasons for the foregoing rules of appellate procedure are so manifest as to require no comment.
Overruled.