Opinion
No. 40060.
March 19, 1956.
1. Appeal — statutes — interlocutory appeals — apply only to cases in Chancery Court.
Sec. 1148, Code 1942, providing for an appeal from certain interlocutory orders or decrees where Chancellor grants the appeal and thinks it proper to settle all of the controlling principles involved in the case applies only to cases in the Chancery Court. Sec. 1148, Code 1942.
2. Habeas corpus — appeal from County Court order transferring habeas corpus child custody case to Chancery Court — not authorized by law.
County Court order transferring a habeas corpus child custody case to Chancery Court was not a final judgment, and an appeal from such order was not authorized by law.
3. Appeal — duty of Supreme Court to determine its own jurisdiction.
It is primary duty of Supreme Court to determine its jurisdiction on appeal, and to raise the question where not raised by the parties.
Headnotes as approved by Hall, J.
APPEAL from the County Court of Jones County; B. FRANK CARTER, Judge.
E.K. Collins, Laurel, for appellant.
I. The Court erred in attempting to refer the writ of habeas corpus to the Chancery Court of the Second District of Jones County, Mississippi.
II. The Court erred in considering the reciprocal suit for support money that was lodged in the Chancery Court of the Second District of Jones County, Mississippi.
III. The Court erred in refusing to either hear or dismiss the writ of habeas corpus as having been ordered by the same Court.
Collation of authorities: Gray v. Gray, 121 Miss. 541, 83 So. 726; Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 89; Hinman v. Craft, 204 Miss. 568, 37 So.2d 770; Secs. 2822, 2831, Code 1942; 25 Am. Jur., Sec. 152 p. 248.
No counsel for appellee.
The appellant filed a habeas corpus suit in the county court against her husband, the appellee, involving the custody of their minor child. She exhibited with her petition a copy of a decree of the District Court of Brazoria County, Texas. The appellee answered the suit and exhibited with his answer a copy of a decree of the Chancery Court of Jones County, Mississippi, and also made known to the county court that a suit was pending in the Chancery Court of Jones County involving the custody of the minor. The County Court of Jones County entered an order transferring the case to the Chancery Court of Jones County for final hearing, and from that decree the wife appeals, contending that the county court should have heard the suit and that it erred in ordering it transferred to the chancery court.
(Hn 1) No final judgment was entered in the county court. Section 1148, Code of 1942, provides for an appeal from certain interlocutory orders or decrees of the chancery court where the chancellor grants the appeal and thinks it proper in order to settle all of the controlling principles involved in the case. That statute applies only to chancery court decrees or orders and we have repeatedly announced the rule that appeals from interlocutory orders or decrees apply only to cases in the chancery court. Roach v. Black Creek Drainage Dist., 206 Miss. 795, 41 So.2d 5, and cases therein cited. (Hn 2) There is no authority of law for an appeal from an interlocutory order or judgment of the circuit court or the county court and appeals are allowed only from final judgments of such courts (Hn 3) and it is the primary duty of this Court to determine its jurisdiction of appeals and where the question is not raised, it is our duty to raise it. Roach v. Black Creek Drainage Dist., supra. We think the appeal in this case is not authorized by law and the same will accordingly be dismissed.
Appeal dismissed.
Roberds, P.J., and Lee, Kyle and Holmes, JJ., concur.