Opinion
No. 35533.
January 10, 1944.
APPEAL AND ERROR.
Decree dismissing cross-bill, although without prejudice, was an appealable "final decree" (Code 1930, sec. 13).
APPEAL from the chancery court of Franklin county, HON. R.W. CUTRER, Chancellor.
Hugh V. Wall, of Brookhaven, and Luther A. Whittington, of Natchez, for appellee, on motion to dismiss appeal.
The decree herein appealed from by the Federal Credit Company is not a final decree but is purely an interlocutory decree.
Connell v. Cazenueve, 120 Miss. 567, 81 So. 793; Ladner v. Ogden, 31 Miss. 332; Ames v. Williams, 73 Miss. 772, 19 So. 673; Ward v. Whitfield, 64 Miss. 754, 2 So. 493; Wilson Gray v. May Pants Co. (Miss.), 37 So. 813; Neyens v. Flesher, 79 N.E. 1087-1089; Bostwick v. Brinkerhoff, 1 S.Ct. 15, 106 U.S. 3, 27 L.Ed. 73; Code of 1930, Secs. 14, 3361; Griffith's Mississippi Chancery Practice, Secs. 87, 682, 683, 684; Griffith's Mississippi Chancery Practice, p. 610.
Heidelberg Roberts, of Hattiesburg, and Fred A. Anderson, Jr., of Gloster, for appellant, in reply to motion to dismiss appeal.
The decree appealed from is a final decree and has this effect on appellants.
By permission of the chancellor, the Receiver of the Mississippi Motor Corporation filed an original bill of complaint against a number of alleged debtors of the Corporation, including the Federal Credit Company, which company answered the bill, made its answer a cross-bill and prayed for affirmative relief. Afterwards on motion of the stockholders of the Mississippi Motor Corporation and others the order granting the Receiver permission to file this-bill of complaint was revoked. The bill of complaint was then dismissed by the court, as was also the cross-bill of the Federal Credit Company; the dismissal to be without prejudice to the right of that Company to obtain in another proceeding the relief prayed for in its cross-bill. The Federal Credit Company alone appeals.
The only question on this motion is whether the decree dismissing this cross-bill is final or interlocutory. If the latter, the appeal admittedly will not lie. The decree dismissing the appellant's cross-bill, though without prejudice, is a final decree within the meaning of Section 13 of the Code of 1930. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376. Consequently, an appeal will lie therefrom.
Whether the court below erred in dismissing this cross-bill will arise when, but not until, the case is submitted on its merits.
Motion overruled.