Opinion
No. 41931.
March 27, 1961.
1. Appeals — Chancery Court without jurisdiction of appeals from interlocutory orders of Public Service Commission.
Chancery Court was without jurisdiction of appeals from interlocutory orders of Public Service Commission. Secs. 7716-26, 7716-28, Code 1942.
Headnote as approved by McElroy, J.
APPEAL from the Chancery Court of Hinds County; J.C. STENNETT, Chancellor.
Barnett, Montgomery, McClintock Cunningham, Hedgepeth, Ewing, Price Hedgepeth, Jackson; Welch, Gibbes Graves, Laurel, for movant.
I. Jurisdictional issues before the Court and principles common thereto. A. The right of appeal is purely statutory. Atwell Transfer Co. v. Johnson, 239 Miss. 719, 124 So.2d 861; Bridges v. Board of Suprs., 57 Miss. 252; Craig v. Barber Bros. Contr. Co., 190 Miss. 182, 199 So. 270; Dismukes v. Stokes, 41 Miss. 430; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Jones v. Cashin, 133 Miss. 585, 98 So. 98; J.R. Watkins Co. v. Guess, 196 Miss. 438, 17 So.2d 795; McMahon v. Milam Mfg. Co., 237 Miss. 676, 115 So.2d 328; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; State ex rel. Patterson v. Autry, 236 Miss. 316, 110 So.2d 377; Steele v. Shirley, 9 Sm. M. (17 Miss.) 382; Worley v. Pappas, 161 Miss. 330, 135 So. 348; Griffith's Mississippi Chancery Practice, Sec. 680.
B. An appeal must be in strict compliance with statutory requirements. Atwell Transfer Co. v. Johnson, supra; Bridges v. Board of Suprs., supra; Jackson County v. Meaut, 185 Miss. 235, 189 So. 819; J.R. Watkins Co. v. Guess, supra; Shapleigh Hardware Co., Inc. v. Brumfield, 159 Miss. 175, 130 So. 98; State ex rel. Patterson v. Autry, supra; Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801; Griffith's Mississippi Chancery Practice, Sec. 680.
C. The finality required of a judgment or decree before an appeal will lie. Allen v. Sowell, 231 Miss. 597, 97 So.2d 227; American Oil Co. v. LaValle House, 148 Miss. 259, 114 So. 321; Bank of Courtland v. Long Creek Drainage Dist. No. 3 of Panola County, 113 Miss. 531, 97 So. 881; Bowman v. Empson, 162 Miss. 13, 138 So. 341; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Cox v. Salmon, 171 Miss. 388, 157 So. 465; Dunagin v. First Nat. Bank of Laurel, 118 Miss. 809, 80 So. 276; Illinois Cent. R. Co. v. Miller, 141 Miss. 213, 106 So. 635; Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So.2d 5; Griffith's Mississippi Chancery Practice, Sec. 609.
II. This Court does not have jurisdiction of the purported appeal under either Section 1147 or Section 7716-28 of the Code. Allen v. Sowell, supra; Illinois Cent. R. Co. v. Miller, supra; 4 C.J.S., Sec. 152(b) (d) (f).
III. This Court does not have jurisdiction of the purported appeal by reason of the fact that the intermediate court of appeal (Chancery Court) had no jurisdiction. Drummond v. State, 184 Miss. 738, 185 So. 207; Hayes v. Abney, 186 Miss. 208, 188 So. 533; J.R. Watkins Co. v. Guess, supra; McCoy v. McRae, 204 Miss. 309, 37 So.2d 353; Welch v. Bryant, 157 Miss. 559, 128 So. 734.
IV. Purported interlocutory appeals.
A. Purported authority for interlocutory appeals. Sec. 1148, Code 1942.
B. Interlocutory appeals are not favored and should be allowed only when strictly within statute. Atwell Transfer Co. v. Johnson, supra; Bierce v. Grant, 91 Miss. 791, 45 So. 876; Liberty Trust Co. v. Planters Bank, 155 Miss. 721, 124 So. 341; Miller v. Klingman, 156 Miss. 795, 126 So. 838; Griffith's Mississippi Chancery Practice, Secs. 681, 682.
C. Interlocutory appeals are restricted to cause originating in the Chancery Court. Coats v. Coats, 227 Miss. 264, 86 So.2d 4; Craig v. Barbour Bros. Contr. Co., supra; Pennyan v. Alexander, 226 Miss. 419, 84 So.2d 388; Pine Lumber Co. v. Covington County, 87 Miss. 706, 40 So. 260; Roach v. Black Creek Drainage Dist., supra; State ex rel. Rice v. Large, 171 Miss. 330, 157 So. 694.
1. The purported interlocutory appeals were not allowed by the trial court nor by a Supreme Court Judge. Sec. 1148, Code 1942.
2. The orders originally appealed from do not fall within any of the four classifications of orders from which appeals may be allowed under Section 1148 of the Code. Johansen v. McMillan, 195 Miss. 390, 15 So.2d 692; Martin v. Reed, 232 Miss. 258, 98 So.2d 765; Moore v. Stewart, 192 Miss. 158, 5 So.2d 237; Nash v. Winter, 235 Miss. 330, 109 So.2d 336; State Highway Comm. v. Woodward, 195 Miss. 392, 15 So.2d 697; Stirling v. Whitney Nat. Bank, 170 Miss. 674, 150 So. 654; Universal Life Ins. Co. v. Keller, 197 Miss. 1, 17 So.2d 797; Yates v. Box, 194 Miss. 374, 11 So.2d 802.
3. The purported interlocutory appeals could not settle "all the controlling principles involved in the cause". Liberty Trust Co. v. Planters Bank, supra; Moore v. Stewart, supra; Nash v. Winter, supra; State Highway Comm. v. Woodward, supra; Griffith's Mississippi Chancery Practice, Secs. 681, 682.
4. Interlocutory appeals do not lie from orders dealing with procedural matters. Atwell Transfer Co. v. Johnson, supra; Breland v. Lemastus, 183 Miss. 150, 183 So. 500; Carothers v. Bank of Baldwyn, 158 Miss. 602, 131 So. 111; Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360; Lott v. Windham, 191 Miss. 849, 4 So.2d 342; Prine v. Smith, 226 Miss. 701, 85 So.2d 210; Stirling v. Whitney Nat. Bank, supra; Stogner v. Crystal Springs Baptist Church (Miss.), 22 So.2d 368; Universal Life Ins. Co. v. Keller, supra; Warner v. Hogin, 148 Miss. 562, 114 So. 347; 1 C.J.S., Abatement Revival, Secs. 187, 208, 211, 212; 50 C.J.S., Judgments, Sec. 822; 72 C.J.S., Practice, pp. 472, 473; Griffith's Mississippi Chancery Practice, Secs. 287, 314, 682, 684.
5. Interlocutory appeals do not lie from orders requiring discovery or production of documents. Equitable Assur. Soc. v. Clark (Miss.), 28 So. 798; Gulf S.I.R. Co. v. Railroad Comm., 94 Miss. 124, 49 So. 118; Illinois Cent. R. Co. v. Mississippi Railroad Comm., 143 Miss. 805, 109 So. 868; South Mississippi Airways v. Chicago Southern Airlines, 200 Miss. 329, 26 So.2d 455; Universal Life Ins. Co. v. Keller, supra; Griffith's Mississippi Chancery Practice, Sec. 684.
6. The purported interlocutory appeals were not taken within the time provided for by Section 1148 of the Code. Farrar v. Phares, 232 Miss. 391, 99 So.2d 594; Monsour v. Farris, 181 Miss. 803, 118 So. 326; Raiford v. Daniels, 237 Miss. 672, 115 So.2d 307; Smith v. Atkinson, 193 Miss. 554, 10 So.2d 379; Smith v. Holifield, 98 Miss. 649, 54 So. 84; Sowell v. Sowell, 101 Miss. 623, 57 So. 626; Turner v. Simmons, 99 Miss. 28, 54 So. 658; Sec. 1148, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 686.
7. The Public Utilities Act of 1956 does not provide for interlocutory appeals. Mississippi Valley Gas Co. v. City of Jackson, 236 Miss. 81, 109 So.2d 637; Sec. 7716-26, Code 1942.
D. The Public Utilities Act provides an exclusive appeal remedy, which is limited to appeals from a "final finding, order or judgment". Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Mississippi Valley Gas Co. v. City of Jackson, supra; Shapleigh Hardware Co., Inc. v. Brumfield, supra; Secs. 7716-26, 7716-26(d), Code 1942. Eaton, Cottrell, Galloway Lang, Gulfport; Byrd, Wise Smith, Watkins Eager, Jackson, for movees.
I. As counsels' motion to dismiss involves the merits of the case, the motion must be denied. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607; State v. Woodruff, 83 Miss. 107, 35 So. 422; Succession of Marion (La.), 164 So. 625; 5 C.J.S., Sec. 1377 p. 487.
II. Where an intermediate appellate court refuses to take jurisdiction of an appeal and remands the case, such action is in effect a final decree dismissing the appeal, and is, therefore, appealable. Secs. 7716-26, 7716-28, Code 1942; 2 Am. Jur., Sec. 144 p. 936; 4 C.J.S., Sec. 152 p. 503.
ON MOTION TO DISMISS APPEAL
The question before the Court is the motion of the appellees, Mississippi Public Service Commission and South Mississippi Electric Power Association, et al., to dismiss the appeal of the appellants, Mississippi Power Company and Mississippi Power Light Company.
This appeal arose from certain proceedings now pending before the Mississippi Public Service Commission and bearing No. U-508 on the docket of said Commission, wherein the appellee filed its petition, seeking a certificate of public convenience and necessity from said Commission to construct, operate and maintain a 65 megawatt electric generating station in Section 33, Township 7 North, Range 13 West, of the First Judicial District of Jones County, Mississippi, and an electric transmission system extending from said station into various parts of East and Southeast Mississippi.
Before the Commission, the Chancery Court and the Supreme Court, there have been 29 pleadings filed by the appellants, including three appeals. Among these pleas are "Plea in Abatement", "Motion to Dismiss", and "Motion to Require Petitioner to Produce Documents", as well as "Demurrers". There have been several pleas filed in the Supreme Court in this particular case. The pleas before the Mississippi Public Service Commission have been overruled and the case was set for trial on its merits. The appellants being aggrieved by the orders overruling motions and pleas were permitted to appeal directly to the Chancery Court of the First Judicial District of Hinds County, Mississippi. The appellants applied to the chancery court for an interlocutory appeal from the aforesaid orders directly affecting its pleading by a motion styled, "Motion for Interlocutory Appeal", and filed in the chancery court on August 2, 1960, on the date the Mississippi Public Service Commission had set the case for trial on its merits.
The appeal was under color of Section 7716-26, Mississippi Code of 1942, Rec.
The chancery court allowed each of the applications for interlocutory appeal by common order rendered and filed on said date.
The appellees filed motions in the chancery court to dismiss interlocutory appeal, plea in bar to interlocutory appeal, general and special demurrers to the said appeal, and many others.
The chancery court on October 31, 1960, entered an order finding that the aforesaid pleadings of the appellees should be sustained for want of jurisdiction of the chancery court and ordering that the appeals of the appellants be dismissed and the cause be remanded to the Mississippi Public Service Commission for further proceedings and taxing the appellants with all costs.
Section 7716-26, of the Mississippi Code of 1942, Rec., reads as follows: "In addition to other remedies now available at law or in equity any party aggrieved by any final finding, order, or judgment of the commission, shall have the right, regardless of the amount involved, of appeal to the Chancery Court, First Judicial District of Hinds County, Mississippi. If an application for rehearing has been filed, an appeal must be filed within thirty (30) days after the application for rehearing has been refused or deemed refused because of the commission's failure to act thereon within the time specified in the preceding section or, if the application is granted, within thirty (30) days after the rendition of the decision on rehearing. If an application for rehearing has not been filed, an appeal must be filed within thirty (30) days after the entry of the commission's order."
Section 7716-28, of the Mississippi Code of 1942, Rec., reads as follows: "Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the chancery court."
(Hn 1) We feel that the motion of the appellees to dismiss the appeal is well taken. In the case of Mississippi Valley Gas Co. v. City of Jackson, Miss., 236 Miss. 81, 109 So.2d 637, the Court said: "The Public Utility Act of 1956 became effective upon its approval by the Governor on March 29, 1956. Section 5 of said Act requires that no person shall operate equipment for transmitting or distributing gas without first having obtained from the Commission a certificate that the present or future public convenience and necessity require, or will require, the operation of such equipment or facility. * * * since the Legislature has provided a specific method for an appeal to be taken from an order of the Public Service Commission, such as the one here involved, in the Public Utility Act of 1956 (Section 7716-26, Code of 1942 Vol. 6 of the Code as recompiled), this statute being a particular statute will control over the general statutes, Sections 1206 and 1207, granting appeals by Certiorari, for the reason that said Section 7716-26 provides among other things that `* * * any party aggrieved by any final finding, order, or judgment of the commission shall have the right, regardless of the amount involved, of appeal to the Chancery Court, First Judicial District of Hinds County, Mississippi * * *'.
"Thus it will be noted that the Public Utility Act of 1956 (Section 7716-26) transferred to the Chancery Court of the First Judicial District of Hinds County, Mississippi, the appellate jurisdiction theretofore existing in the First Judicial District Circuit Court of Hinds County, Mississippi and reduced the time for the appeal to thirty days instead of the six months granted for appeals in the Circuit Court under Section 7699, Code of 1942, insofar as appeals under the Public Utility Act of 1956 are concerned."
We are not passing on the legal aspects of the different pleas and motions.
From the foregoing section it follows that the decree of the chancery court dismissing the case for want of jurisdiction was proper and therefore the motion to dismiss the appeal on behalf of the appellees is sustained and the case should go back to the Mississippi Public Service Commission for final disposition on its merits.
Motion to dismiss appeal is sustained.
Lee, P.J. and Gillespie, Rodgers and Jones, JJ., concur.