Opinion
No. 32317.
November 2, 1936.
1. APPEAL AND ERROR.
Order of chancery court transferring to circuit court action ex delicto for malicious prosecution in which it was alleged that defendant was a nonresident and attachment was issued and served on his lands held not appealable, notwithstanding chancellor granted the appeal as from an interlocutory decree because of doubt as to correctness of transferring cause and in order to save costs and delay (Code 1930, secs. 14, 173).
2. TRIAL.
Circuit court held vested with jurisdiction of action transferred by chancery court, whether action was one of law cognizance or not (Code 1930, secs. 173, 491).
APPEAL from chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
J.F. Galloway, of Gulfport, for appellant.
Section 162 of the Constitution of the state of Mississippi is as follows: "All causes that may be brought in the chancery court, whereof the circuit court has exclusive jurisdiction, shall be transferred to the circuit court."
The court was without power to transfer a cause, over which it had acquired a special, limited, statutory jurisdiction, to the circuit court, under the above quoted section of the Constitution, because the chancery court had exclusive jurisdiction, and the circuit had none upon the face of that record.
Insurance Realty Co. v. Fire Ins. Co., 113 Miss. 542, 74 So. 420; Scruggs v. Blair, 44 Miss. 406; Stratham v. New York Life Ins. Co., 45 Miss. 581.
A circuit court could not take jurisdiction of an attachment suit without both the affidavit and the bond specifically required by the statutes, in such cases.
Appellees might have brought the suit in the circuit court in the first instance, but they evidently desired to avoid giving the bond, and thereby incur the necessity of having to pay attorneys fees and damages if the court should hold the attachment was wrongfully sued out. In the attachment suits in the chancery court, no bond is required, and there might not be recovery of damages, or attorneys fees in wrongfully suing out the attachment.
Griffith, Equity Practice, art. 490; Carter v. Brandy, 71 Miss. 240, 15 So. 790.
Now, having brought the suit as an attachment in chancery, and having forced appellant to appear and defend his property on account of such attachment, he immediately moved to transfer the suit to the circuit court with the determination to proceed against him in a court of law without giving the bond, hold the property under attachment, and also recover a personal judgment against him, thus juggling with jurisdictions, to avoid that bond, and its consequential results.
Section 17 of chapter 151 of the Laws of 1924, which has been brought forward in the Code of 1930, gave to the chancellor the discretion to grant appeals from interlocutory orders or decrees, or on demurrers, or on motions, to settle the principles of the cause, or, in exceptional cases, to avoid expense and delay.
Ward v. Whitfield, 2 So. 495.
In the case of Robertson v. Dry Goods Co., 115 Miss. 224, this court said, in discussing such transfers of causes: "If a case of which equity had original jurisdiction should be wrongfully transferred, by the chancellor to the circuit court, and an appeal prosecuted by permission of the chancellor, we would be bound to hold that the substantial rights of the litigants are presented. If we should decline jurisdiction in the present case, we would be setting a precedent, whereby jurisdiction would be declined in all cases of this character."
Appellant has a most substantial right, a very valuable piece of property, for which he paid eighty-two thousand dollars was being held under attachment without bond, while the case was being made a football of, and kicked out of the court, which had special jurisdiction under the statute, and transferred to a court which had none whatever, upon the record.
White Morse, of Gulfport, for appellee.
This court has heretofore decided that an order of transfer is not appealable, it merely involves a step in procedure. It does not settle all the controlling principles involved in the cause.
Section 14, Code of 1930 (chapter 151, Laws of 1924); Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co., 174 Miss. 843, 165 So. 615; Warner v. Hogin, 148 Miss. 562, 114 So. 347; Love v. Love, 158 Miss. 785, 131 So. 280; Stirling v. Whitney Bank, 70 Miss. 674.
This is an appeal from an order of the chancery court transferring this cause from that court to the circuit court. The chancellor granted the appeal as from an interlocutory decree as allowed by section 14, Code 1930, because of "its doubt as to the correctness of transferring said cause to the circuit court and in order to save costs and delays."
The cause arose by Dent and others filing a bill in the chancery court against Dunn as a nonresident, as provided by article 2, ch. 7, sec. 173, Code 1930, seeking to recover in an action ex delicto for malicious prosecution in bringing and prosecuting to a conclusion a certain civil lawsuit, and set up, in connection therewith, several other companion suits. It alleged that the appellant is a nonresident of the state, and an attachment in chancery was issued and served upon his lands.
In the case of Marquette Cement Mfg. Co. v. New Amsterdam Cas. Co., 174 Miss. 843, 165 So. 615, this court unequivocally held that, by virtue of section 14, Code 1930, an appeal was not allowable to settle all the controlling principles involved in a case based on a motion which involved nothing but a step in procedure. That case had reference specifically to an appeal from an order transferring a cause instituted in the chancery court to the circuit court, and there pointed out that the court had distinctly held in Warner v. Hogin, 148 Miss. 562, 114 So. 347, that such an order of transfer is not appealable. The court there had in mind the decision of this court in the case of Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149. It may be pointed out, however, that in the latter case the court sustained the right of appeal because there was an order overruling a demurrer as a part of an order of transfer.
In the case at bar the contention is made in favor of the appellant that the appeal should be sustained to avoid expense and delay.
The rule announced covers the entire field in the construction of section 14, supra.
When the court below entered its order transferring this cause to the circuit court, it was invested with jurisdiction of this case, section 491, Code 1930, whether the case was one of law cognizance or not.
Appeal dismissed.