Opinion
No. 42415.
October 22, 1962.
1. Appeal — would not lie — dismissed ex mero motu.
Where judgment was rendered while Circuit Court was in vacation transferring suit for prohibitory injunction to Chancery Court, and thereafter judgment was rendered by Circuit Court striking motion to set aside judgment transferring suit and demurred to motion, appeal would not lie from latter judgment because no final judgment was rendered in case and because interlocutory appeal could not be and was not granted by Circuit Court. Sec. 1657, Code 1942.
ON SUGGESTION OF ERRORNovember 12, 1962 146 So.2d 359
2. Appeal — suggestion of error overruled — appeal dismissed.
After Judge of Circuit Court signed order directing Chancery Court to issue injunction and deliver petition and fiat to Chancery Clerk, filing of petition and order and docketing of case in Circuit Court was erroneous, useless, needless and without authority and did not confer any jurisdiction upon Circuit Court, all that was done there was nullity and there was nothing from which to appeal to Supreme Court. Sec. 1657, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, J.
Sullivan Sullivan, Hattiesburg, for appellants.
I. The order of the Circuit Court, being entered in vacation without consent of the parties, was void. Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582; J.J. Newman Lumber Co. v. Pace, 137 Miss. 504, 102 So. 570; Yazoo M.V.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; Sec. 506, Code 1906; Secs. 1228, 1523, Code 1942; 21 C.J.S., Courts, Sec. 167; 49 C.J.S., Judgments, Sec. 114.
II. A petition for a temporary injunction, being a statutory remedy, could not be transferred from the Circuit Court to the Chancery Court, and upon demurrer the only valid order was one of dismissal. Board of Levee Com'rs for Yazoo-Mississippi Delta v. Brooks, 76 Miss. 635, 25 So. 359; Secs. 147, 157, 162, Constitution 1890; Secs. 1109, 1120, 1262, 1273, 1278, 1314, 1324, 1335-1354, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 512.
Lester Clark, R.A. Gray, Jr., Howard L. Patterson, Jr., Stone D. Barefield, Francis T. Zachary, Hattiesburg, for appellees.
I. Section 1657, Mississippi Code of 1942, unquestionably authorized the Circuit Judge to enter the "Order and Fiat" of September 21st, 1961, granting the injunction, in vacation. Craig v. Woods, 190 Miss. 258, 199 So. 772; Jenkins Boyle v. Rogers, 184 Miss. 182, 185 So. 603; Stark v. Fulton, 136 Miss. 637, 101 So. 857; Warner v. Hogin, 148 Miss. 562, 114 So. 347; Secs. 147, 157, Constitution 1890; Secs. 1262, 1657, Code 1942; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 517 p. 527.
II. It is the position of counsel for the appellees that Article 6, Section 157, Mississippi Constitution of 1890, expressly authorizes the Circuit Judge's transfer of the appellees petition for prohibitory injunction to the Chancery Court of Forrest County, Mississippi. Bradley v. Howell, 161 Miss. 346, 133 So. 843; Griffin v. Maryland Casualty Co., 213 Miss. 624, 54 So.2d 486; Layne Central Co. v. Gulf Coast Ice Co., 171 Miss. 94, 157 So. 84; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48; Robertson v. F. Goodman Dry Goods Co., 115 Miss. 221, 76 So. 149; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Williams v. Deposit Guaranty Bank Trust Co., 190 Miss. 685, 1 So.2d 486; Sec. 157, Constitution 1890; Griffith's Mississippi Chancery Practice, Sec. 517, pp. 526, 527.
This appeal is from the Circuit Court of Forrest County, Mississippi, wherein a judgment was rendered in a suit for a prohibitory injunction brought by the appellees, The Adult Membership Boards of the Phi Kappa, Dusty and Debs Clubs, being High School Sororities and Fraternities of the City of Hattiesburg, Mississippi, against the appellants, B.J. McMahan, et al., Trustees of the Hattiesburg Municipal Separate School District, and The Superintendents of Education of Three High Schools, Respectively, in the City of Hattiesburg, Mississippi. The judgment was rendered on September 21, 1961, at a time when the Forrest County Circuit Court was in vacation, and the judgment rendered transferred the cause under Sec. 1657, Miss. Code of 1942, to the chancery court and directed the clerk of the said court to issue the injunction prayed for. A timely motion to set aside this judgment and a demurrer were filed by appellants, after the order of transfer had been entered. This motion to set aside the judgment of transfer, as well as the demurrer thereafter filed, were overruled by the circuit judge. There is no petition, declaration or bill of complaint in the record on the appeal of this cause, but it is alleged by the appellees that there was such a petition before the court for the prohibitory injunction at the time the court ordered the cause transferred to the chancery court. On January 27, 1962, during the January Term of the Circuit Court of Forrest County, Mississippi, the motion and demurrer of the appellants were stricken, and it is from this judgment that the appellants prosecute this appeal.
(Hn 1) We do not think that the appeal will lie for the reasons (1) that no final judgment was rendered in the case, and (2) an interlocutory appeal cannot be granted by the circuit court, and none was granted in the instant case.
We are therefore of the opinion that we should of our own motion dismiss this appeal and proceed to a determination of the fact as to whether or not the interlocutory appeal granted by the chancery court should be entertained.
The appeal in the above-numbered cause is therefore dismissed for the reasons hereinbefore stated.
Appeal dismissed.
Gillespie, McElroy, Rodgers and Jones, JJ., concur.
ON SUGGESTION OF ERROR
(Hn 2) The Court was correct in dismissing the appeal in this case to which a suggestion of error has been filed. The original opinion, however, left the case apparently pending in the Circuit Court of Forrest County. This was not the intention.
The Judge of the Circuit Court of Forrest County was presented with a petition for an injunction which he was authorized to consider under Sec. 1657, Code of 1942. The judge signed the order or fiat directing the Chancery Clerk of Forrest County to issue the injunction, and the petition and the fiat were delivered to the Chancery Clerk. However, their case had been entered on the docket of the Circuit Court and the order or fiat had been recorded on the minutes of that court. The appellants filed a demurrer in the Circuit Court and also filed a motion to strike. The Circuit Court overruled the demurrer and the motion to strike but later entered an order striking the demurrer and the motion from the files on the ground that it was erroneously entered on the docket of the Circuit Court. The filing of the petition and the order and the docketing of the case in the Circuit Court was erroneous, useless, needless and without authority. We do not think that it conferred any jurisdiction upon the Circuit Court, and all that was done there was a nullity. Consequently, there was nothing from which to appeal to this Court.
The suggestion of error is overruled and the appeal as heretofore ordered is dismissed.
Suggestion of error overruled and appeal dismissed.
Gillespie, McElroy, Rodgers and Jones, JJ., concur.