Opinion
No. 27410.
November 19, 1928. Suggestion of Error Overruled December 17, 1928.
1. EQUITY. Where complainant in bill waived answer under oath, neither party could rely on sworn bill and answer as evidence ( Hemingway's Code 1927, section 360).
Where complainant in bill waived an answer under oath, answer even though sworn to, was not evidence for defendant under Code 1906, section 585 (Hemingway's Code 1927, section 360). and neither party could rely on his pleading as evidence though bill was also sworn to.
2. INJUNCTION. On hearing of motion to dissolve injunction granted on ex parte application, burden is on movant to establish grounds for dissolution ( Hemingway's Code 1927, section 382).
On hearing of motion to dissolve injunction, burden of proof is on movant to establish grounds for dissolution, even though injunction was granted on ex parte application, since party applying must satisfy court that irreparable injury will probably result if injunction is not issued under Code 1906, section 608 (Hemingway's Code 1927, section 382), whether application is ex parte or on hearing of both parties.
3. INJUNCTION. On motion to dissolve injunction enjoining husband from transferring certificates of deposit, evidence accounting for funds coming into husband's hands belonging to complainant wife was admissible.
On trial of motion to dissolve injunction enjoining husband from negotiating and transferring certificates of deposit standing in husband's name, but which wife claimed belonged to her, evidence offered by husband for purpose of accounting for all funds which had come into his hands belonging to wife should have been admitted.
4. INJUNCTION. Temporary injunction should not be dissolved on motion, but should be retained for final hearing, where necessary to do complete justice.
Temporary injunction should not be dissolved on motion, but should be retained for final hearing or for full proof, where such course is necessary to do complete justice between the parties.
ON SUGGESTION OF ERROR.5. APPEAL AND ERROR. Granting appeal to settle principles of cause brings before Supreme Court only questions raised by appellant's assignment of errors.
Granting of an appeal to settle principles of a cause does not necessarily bring before Supreme Court all questions presented to and passed upon by trial court, but only such questions as are raised by appellants' assignment of errors.
6. APPEAL AND ERROR. Appellee, deeming question of admitting evidence over her objection one of controlling principles of cause, should have taken cross-appeal and filed cross-assignment of error.
Where appeal was granted to settle principles of cause, if appellee deemed question of court's admitting certain evidence over her objection as one of controlling principles of cause, which should have been settled on appeal, it was her duty to take cross-appeal and file cross-assignment of error, setting up court's action in that respect as error.
7. APPEAL AND ERROR. Supreme Court is court of appeals, and cannot decide question of admissibility of evidence arising on another trial, after remand, because of appellant's death pending appeal.
Under Constitution, Supreme Court is court of appeals, having no original jurisdiction, and cannot decide question of admissibility of certain evidence that may arise on another trial of cause, after remand to trial court, because of appellant's death pending appeal.
APPEAL from chancery court of Sunflower county, HON. J.L. WILLIAMS, Chancellor.
Chapman, Moody Johnson, for appellant.
The lower court, on the hearing of the motion to dissolve the injunction ruled that the burden of proof was on the movant, appellant. This is a harsh rule and is logically unsound when it is considered that the right to an injunction depends on the right to relief. If there is no right to relief, then there is no right to the injunction.
The right to relief, of course, depends upon a favorable decision of the issue of fact affirmed, and the burden of proof is on the affirmant to prove the facts. If the right to the injunction, which merely preserves the status quo, is dependent on the right to relief, and if the right to relief depends upon a favorable decision of the issue of fact affirmed, and the burden of proof rests with the complainant to prove the facts, then it follows that the burden of proof does not shift, though the burden of evidence may do so. 22 C.J. p. 68, 76 et seq. This is especially true with reference to the hearing of a motion to dissolve an injunction granted on an ex parte application. See Chancery Rule XXII, Griffith's Miss. Chan. Prac. 83; Williams v. State, 124 Miss. 720, 87 So. 273.
A mere perusal of the bill of complaint is sufficient to convince the court that this rule was not complied with. However that may be, on an ex parte application it is not necessary that the facts alleged be proved, but only that the bill clearly show a just case for the writ.
Therefore, on an ex parte application, no issue is presented as to whether the facts alleged are true, but only, assuming that the facts are as alleged, a just case for the writ is presented. Surely it would be unjust to hold that a defendant is concluded by a decision of fact, even temporarily, without an opportunity to be heard. But a different rule may apply if a defendant has an opportunity to be heard. If with notice the defendant appear, or fail to appear, it may be true that he is, temporarily at least, bound by the decision of fact or law, and if thereafter he challenges such decision the burden should be on him to show that it is erroneous, either as to a decision of the issue of fact or law. Yet, having no opportunity to be heard, why should he be bound by such a decision, or rather why should the burden shift to him to prove that the decision of the issue of fact is erroneous? Justice should, and we think does, demand that a complainant, on an ex parte application, who obtains an order, based on a statement of facts, when such order is challenged, have the burden of proving, at least prima facie, that such a decision of an issue of fact is correct, for otherwise a defendant would be concluded, for a time at least, without an opportunity to be heard.
The affidavit to the bill of complaint was made by one of the attorneys for the complainant, not by the complainant. This of course was authorized, yet such an affidavit should state whether the allegations made on information and belief, are on the information and belief of the complainant or of the attorney; and statements within the knowledge of the affiant must be stated to be within his knowledge. Sec. 767, Hem. Code 1927; Waller v. Shannon, 53 Miss. 500; Burks v. Burks, 66 Miss. 494, 6 So. 244. In the instant case the affidavit does not so state. Furthermore, on the hearing below, the same attorney voluntarily testified, in effect, that he had no personal knowledge of the material facts now under consideration. Sec. 382, Hem. Code 1927; Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652; Richardson May v. Lightcap, 52 Miss. 508; Foxworth v. Magee, 48 Miss. 532.
On the hearing below the complainant objected to the introduction of certain receipts, executed by her, evidencing the payment of specific sums of money on different dates, and certain checks, given by the defendant, for money advanced to or for the complainant. The grounds of objection, in substance, were that such receipts and checks were incompetent because not pleaded, and irrelevant and immaterial because they did not prove or tend to prove the issue of fact presented. The bill charges that the defendant had in his possession one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents, evidenced by the term certificate of deposit, which belonged to the complainant, that is that she was the owner thereof. That this particular sum of money, evidenced by such term certificate, was deposited by the defendant in his name "in certain banks in the state of Mississippi." Therefore, the issue of fact presented by the bill of complaint is whether this particular sum of money on deposit in the name of the defendant, "in certain banks in the state of Mississippi" and afterwards, by the defendant, converted into the term certificate or deposit, belonged to the complainant. These are the facts affirmed by the complainant, the affirmation of which is denied by the defendant.
The defendant, by answer under oath, specifically denied that all or any part of said sum of one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents put to his credit "in certain banks in the state of Mississippi," and said term certificate of deposit belonged to the complainant. In order to prove that the defendant never received from the complainant this large amount of money, or any material portion of it, she, the complainant, was placed on the witness stand in order to ascertain from her every possible source from which the defendant could have received money for her or belonging to her, from the total of which there should be deducted all sums of money that he paid out for her. If it could be established by proof that the complainant never had any money that the defendant or anyone else could have received, the inference would be conclusive that this particular money did not belong to her. Or, if it could be established by proof that all money which the defendant did receive for the complainant was accounted for by him to her, the inference is likewise conclusive that this particular money did not belong to her, as she charges. But, it is said, this evidence tends to prove an affirmative defense which should have been pleaded; otherwise it is incompetent. It is sufficient to say that if the bill had charged that this particular amount of money was merely received by the defendant he could meet such an allegation or issue in two ways. He could, in the first place, deny it, and any evidence, circumstantial or otherwise, that would tend to disprove it would be competent. On the other hand he could admit it, and in avoidance of such admission proceed to account for it. In the latter case the defense would be affirmative and should be pleaded. This should be so evident as not to need argument. But this is not the case presented.
The defendant does not, in this case, attempt to escape liability by proving that he accounted for this particular money, and he could not from the very nature of the case do so, for it is charged that he had it in his possession. The allegation is that the defendant had on deposit in his name "in certain banks in the state of Mississippi" one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents, which belonged to the complainant, and which he afterwards withdrew and deposited in a bank in Los Angeles, receiving therefor its term certificate of deposit, which, at the time the bill was filed, he had in his possession. To meet the truth of this allegation, the complainant, as an adverse witness, was put on the stand to prove by her all possible money that the defendant could, under any circumstances, have received for her. The defendant then proved that he paid out to and for her all of the money so received. If that be true, then this particular money could not belong to her. This is evidence, not in support of an affirmative defense, but evidence in rebuttal of evidence by which the complainant seeks to prove the issue of fact affirmed, which is by the defendant denied.
The court erred in overruling the motion to dissolve the injunction, theretofore granted. It is contended that on the evidence, introduced on the trial below, the motion should have been sustained and the injunction dissolved. The fact put in issue by the bill of complaint is the ownership of the particular term certificate of deposit, heretofore referred to. The complainant claims that she is the owner thereof, which the defendant denies. The issue of fact is clear-cut, whatever may be said of the proof or evidence offered to prove or disprove it. If this fact is not true, the right to the injunction must fail. The evidence discloses that when this suit was filed, and prior to this trial below, this term certificate of deposit, which is the subject-matter of this suit, was in the possession of the appellant. Possession by the appellant of this term certificate of deposit, the subject-matter of this suit, is prima-facie evidence of ownership. The law, as to this, is elementary, and authority is cited merely as a matter of form. 9 Enc. of Ev. 257; 22 C.J. 126, sec. 65.
While it is true that the question as to whether an injunction should be dissolved rests in the sound discretion of the court, yet this is a judicial discretion, the act of a judge as a judge, not his act as a mere individual. Consequently, the judge must determine the issue of fact from evidence and, in the absence of evidence proving or tending to prove the fact, and more especially with evidence proving that the fact charged did not exist, there is nothing on which his discretion as a judge could be based.
Ward Allen and Meserve, Mumper, Hughes Robertson, of Los Angeles, Cal., for appellee.
The court ruled that the burden of proof was on the movant, and in this we think the court was eminently correct. High on Injunctions (4 Ed.), sec. 1470; Ingles v. Straus, 91 Va. 209, 21 S.E. 490. The hearing was on bill, answer, and oral and documentary proof. The bill was sworn to by complainant's solicitor, and the answer was sworn to by defendant himself, but the bill waived answer under oath. Sec. 585 Code of 1906; Sec. 360, Hem. Code 1927. In Hentz v. Delta Bank, 76 Miss. 429, 24 So. 902, this court held that where answer under oath is waived, whether sworn to or not, it cannot be considered as evidence for respondent upon a motion to dissolve an injunction. In the Hentz case the court declined to decide whether or not the answer could be treated as a mere affidavit, but its use as an affidavit is not the question we are considering just here. On hearing of a motion to dissolve, the burden of proof is on the movant to establish the grounds for dissolution. 32 C.J. 436; 4 C.J. 660; Renner v. Marshall (Tenn.), 58 S.W. 863 We submit that the chancellor was eminently correct in holding that upon this motion the burden was on the movant, but that even if he were wrong it is not reversible error, the controlling object being the preservation of the res in order that justice in regard thereto may be done. We do not believe the defendant can show that he was damaged by being required to assume the burden on this motion to any such extent, as complainant would be damaged if this money, which has already taken one hegira to California, were allowed to get away again.
The apparent purpose of all the evidence offered by defendant was to show that complainant could have had no such sum as one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents and that therefore no probable right was shown to her. But in order to show that she could have no such sum the defendant must rely upon those tremendous batches of receipts, checks, etc., to offset the money of complainant in the sum of fifty thousand dollars, and he must rely upon that iniquitous two thousand dollar lease contract to establish his right to the profits of complainant's plantation for the seven years of 1921-1927, inclusive. Also, no account is taken of the increment and interest of her funds, which, constantly increasing and pyramiding over a period of fourteen years, could amount to a very large sum. If the transactions indicated by that so-called two thousand dollar lease and by those tremendous batches of receipts, etc., had been had by complainant with some one other than defendant, it might have been permissible to try to show by them that complainant could have had no large sum of money, and that her claimed ownership of the sum involved in this suit was some sort of wild hallucination, and for that reason the injunction ought to be dissolved; but, the fact remains that these transactions were all had with defendant, the trusted husband, agent, and trustee of complainant, and by the very offering of them as evidence the defendant checks complainant's money into himself and into the fund in litigation.
We submit that the discretion of the chancellor in retaining the injunction until the final hearing was properly exercised, and under the rule will not be disturbed by this court, the rule being that before the trial court should be reversed on his holding on such a motion, there should appear an unquestioned abuse of discretion on his part. We submit that if the chancellor had sustained the motion to dissolve, it would have been a flagrant abuse of his discretion. This money is now safely in the bank, after its long wanderings across the continent, and if by any chance, it should be held that a dissolution of the injunction should permit the defendant to take the money out of court, the result would be extremely disastrous to any rights which complainant might have. We say this in view of sec. 2520, Code of 1906, sec. 2188, Hem. Code 1927, which provides that no money judgment can be taken by a wife against her husband for income received by him from her estate after one year from the receipt thereof. The period of time covered by this lawsuit extends back fourteen years, and if she cannot actually find her money, her rights might be gone forever. She has a case now under the statute as long as she can find and is suing for the actual res. See Hendricks v. Peavy, 78 Miss. 716, 28 So. 925, which holds that the statute does not apply where the wife is suing to recover in rem, and can identify the money as hers.
These receipts, checks, etc., were presented on the apparent theory that funds received by defendant from complainant were disbursed by him to her and from her account in the manner indicated. This is the theory of payment of the trust fund, and under the authority of Dean et ux. v. Boyd, 86 Miss. 204, 38 So. 297, payment and the application thereof must be pleaded. See secs. 327 and 360, Griffith's Miss. Chan. Prac. At common law it appears that payment might be proved under the general issue plea. But in this state it is necessary to plead payment even in a court of law. Sivley v. Williamson, 112 Miss. 276, 72 So. 1008; 39 Cyc. 625.
Complainant has testified that she signed receipts in blank and delivered them to defendant. Uberrima fides is required of him. The burden of proof is on him to clearly establish each disbursement, and what it was for. We think these receipts, checks, etc., can never be admitted as evidence in this case, and most certainly are they inadmissible so long as they are offered in one conglomerate mass, with no more explanation than has so far accompanied them.
This suit is strictly a proceeding in rem, to establish a trust. The exact theory of our bill is that of Hendrix v. Peavy, 78 Miss. 716, 28 So. 924. Appellant contends that the court below erred in placing the burden of proof on defendant at the hearing on the motion, and for that reason the court below ought to be reversed. We are sure there was no reversible error, even if there was error at all, and we cite again 4 C.J. 460, and Renner v. Marshall (Tenn.), 58 S.W. 863.
It must be presumed that when the chancellor granted the injunction, he was satisfied as to complainant's equity and as to the truth of the allegations of her bill. We do not know of any rule requiring proof, at the hearing, of matters presented to the chancellor when the injunction was obtained. The test, at the hearing, is the showing of a probable right in the complainant; and, we think this the correct rule, regardless of the showing made when the injunction was obtained.
Appellant cites the cases of Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652, 653; Bowen v. Haskins, 45 Miss. 188; Richardson May v. T.M. Lightcap, 52 Miss. 508, 515; and Foxworth v. Magee, 58 Miss. 532. In all of these cases, the court was considering a sworn answer which was evidence, and in some of them the hearing was on bill and answer alone, a type of hearing in which, usually, the only issue presented is whether or not the answer is sufficiently responsive to the allegations of the bill to swear away its equities. In such cases, certainly a defendant can swear away the equities of the bill, and if no evidence is introduced in support of the bill, naturally the bill must fall. Not one of these cases are in point with the case at bar, for the reason that complainant here waived answer under oath.
Argued orally by C.C. Moody, for appellant, and Ward Allen, for appellee.
Appellee filed her bill in the chancery court of Sunflower county against appellant, her husband, to enjoin the latter from negotiating and transferring certain bank time certificates of deposit, aggregating one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents, standing in the name of appellant, but which, appellee alleged in her bill, represented funds which had come into the hands of appellant as her agent, and which belonged to her. A temporary injunction was issued and served in accordance with the prayer of the bill. The cause was heard on appellant's motion to dissolve the injunction, and proofs. Appellant's motion to dissolve the injunction was overruled, and an appeal was granted appellant from the order overruling the motion, for the purpose of settling the governing principles of the cause.
The basis of appellee's case is stated in her bill as follows:
"The defendant is the husband of complainant and has been since about January 10, 1914, and for a long time prior and continuously up to about the 4th day of December, 1927, defendant was the confidential and trusted agent of complainant, having her unlimited and full written power of attorney as her agent to transact business for her, including the power to execute and sign instruments in her name and to collect and receive money for her, acting under said power of attorney, and always in all her business as her confidential and trusted agent; that as such confidential and trusted agent, said defendant, D.P. Rickets, during the course of said agency and up to about the 4th day of December, 1927, received for complainant, and as her money and property, large sums of money aggregating the total sum of one hundred fifty-seven thousand, four hundred, thirty-seven and 05/100 dollars ($157,437.05); that for the purpose of convenience and in order that said defendant, as such agent of complainant, might the easier handle her money, said defendant, Rickets, deposited said money as the property of plaintiff, in his own name, in certain banks in the State of Mississippi; that said money, being the property of complainant, was thus deposited by said defendant in his own name in said banks, and not as and being his own property, but as and being the property of complainant, received by him as complainant's agent and attorney; that said course of conduct and business continued for many years up to and about December 4, 1927."
Before appellant made the motion to dissolve the temporary injunction, he had answered the bill. That part of appellant's answer which was responsive to that portion of appellee's bill above quoted follows:
"He denies that he was the confidential and trusted agent of the complainant, and, during the course of said agency, which is denied, and up to about the 4th day of December, 1927, he received for the complainant, as her money and property a large sum of money aggregating the total sum of one hundred fifty-seven thousand, four hundred thirty-seven and five one-hundredths dollars, and he expressly denies that said sum of money, or any part thereof, referred to in the bill of complaint, belonged to the complainant. But, to the contrary, he expressly states and charges that all of said money belonged to him, this respondent, and that the complainant has not and never had any ownership of the same, or any part thereof. He denies that for purposes of convenience, and in order that this respondent, as the agent of the complainant, which is denied, might the easier handle her money, which is denied, this respondent deposited said money, as the property of complainant, which is denied, or placed it in his own name, in certain banks in the state of Mississippi, and he again denies that said money, deposited by this respondent in his own name was the property of the complainant, and he denies that the same was received by him as the complainant's agent and attorney, and he denies that, so far as said money, or any part thereof, is concerned, the conduct and business continued for many years up to and about December 4, 1927. . . .
"Respondent denies that said exchange issued by Mississippi banks, certificate of deposit or cashier's checks, issued by the State Bank of Nixon, in the state of Texas, and the certificate of deposit issued by said Florence and Vermont Branch of the Bank of Italy National Trust and Savings Association, all as charged in said bill of complaint, were the property of the complainant."
Evidently appellee, in her bill, undertook to state a case coming within the principles declared in Hendricks v. Peavy, 78 Miss. 316, 28 So. 944, construing section 2520, Code of 1906 (Hemingway's 1927 Code, section 2188).
At the hearing of the motion to dissolve the injunction, the court ruled that the burden of proof was on appellant, the movant. That action of the court is assigned and argued as error by appellant.
Both the bill and answer were sworn to, but an answer under oath was waived by the bill. Where the complainant in his bill waives an answer under oath, the answer, whether sworn to or not, is not evidence for the defendant. Section 585, Code of 1906 (Hemingway's 1927 Code, section 360); Hentz v. Delta Bank, 76 Miss. 429, 24 So. 902. Therefore the sworn bill, and answer, in this case, simply presented issues of fact for the determination of the court. Neither party could rely on his pleading as evidence.
On the hearing of a motion to dissolve, the burden of proof is on the movant to establish the grounds for dissolution. 32 C.J. 426, section 731. Appellant seems to concede that to be the general rule, but contends that it does not apply here, because the injunction granted in this case was on the ex parte application by appellee. Appellant's position is that, where the injunction has been granted on a hearing of both parties, there is sound reason for the application of the rule that the burden of proof is on the movant to dissolve his injunction, because, in such a case, the complainant has the right to stand on the decree of the court in his favor, awarding the injunction; but that the reason of the rule fails where the injunction is granted on an ex parte hearing, because the granting of the injunction on such a hearing does not amount to a finding by the court of the existence of grounds for the injunction. We know of no authority making such a distinction, and we see no reason therefor. Where a complainant makes application for an injunction, whether the application is ex parte or on a hearing of both parties, he is required to satisfy the court, by oath or other means, that irreparable injury will probably result if an injunction is not issued. Section 608, Code of 1906 (Hemingway's 1927 Code, section 382). We see no reason, therefore, for giving any more weight to the order of the court awarding the injunction in the one case than in the other. In either case, the complainant is entitled to stand on the order of the court granting the injunction, as making out a prima-facie case in his favor, that the injunction was not improvidently issued. The rule, therefore, is that the burden of proof, on a motion to dissolve an injunction, is on the movant, because he is called upon to overcome complainant's prima-facie right to the injunction, based on the action of the court granting the writ.
On the trial of the motion to dissolve, appellant undertook to meet the burden of proof, which the court ruled was upon him, by offering to show all the money and property, of whatsoever kind and character, belonging to appellee, which had come into his hands, and the disposition he had made thereof. A large part of such evidence offered by appellant was in the form of canceled checks and receipts for money paid by him to appellee. The most, if not all, of this character of evidence, on objection by appellee, was ruled out by the court. That action of the court is assigned as error by appellant. As we understand, the court ruled out this character of evidence upon the ground that by it the appellant was seeking to prove an affirmative defense which had not been set up in his answer. We think the court was in error in so ruling; we do not think it was an affirmative defense. Appellant's answer to the bill was as specific and definite as the allegations of the bill. The bill charged that the bank time certificates of deposit, described in the bill, represented money belonging to appellee, and not to appellant. Appellant denied that allegation in his answer. In undertaking to meet the burden of proof, on his motion to dissolve the injunction, he offered the evidence in question, which tended to show all the funds which had ever come into his hands, belonging to appellee, and that he had paid over to appellee the greater part of such funds. We have not examined each piece of the great quantity of evidence of this character offered by appellant, in order to determine whether or not, under our view, it was relevant to the issue. We do not deem that necessary. We simply hold that any competent and relevant evidence offered by appellant for the purpose of accounting for all the funds which had come into his hands, belonging to appellee, his wife, should have been admitted by the court. If by such evidence appellant should be able to establish that he had accounted for and paid over to appellee all the funds he had ever received of hers, certainly it would result that appellee could not be the owner of the bank time certificates of deposit in question. We think, with the statement of this principle, that the trial court will have no difficulty in passing upon the admissibility of the evidence offered by appellant.
Appellant assigns and argues as error the action of the court in overruling his motion to dissolve the injunction. The matters to be taken in consideration, in determining whether or not a motion to dissolve an injunction should be sustained or overruled, are thus stated by Griffith, in his Mississippi Chancery Practice, at page 482, section 456:
" Many considerations influential on motions to dissolve. — When however there has been no agreement to have the hearing treated as a final one, many considerations are influential with a chancellor in determining his action as to dissolving an injunction or retaining it, until full proof or final hearing. As to whether the complainant will suffer more from the dissolution of the injunction than the defendant from its retention, as to whether the bill shows a probable right and a probable danger to that right unless the injunction be retained; and there are many other considerations addressing themselves to the sound judicial discretion of the court. Very wide latitude, necessarily, must be allowed the trial court. The effectuation of right, the vindication of justice, is the object here as everywhere in judicial proceedings; and when fraud is charged the reasons for retaining the injunction are greatly strengthened. In case of conflicting testimony, where serious questions of law and fact are at issue between the parties, and where a dissolution will practically defeat or greatly impair the relief sought, a motion to dissolve on bill, answer, and affidavits should not be sustained. If (1) there be sharply controverted questions of fact presented only on affidavits, or if the showing has been attenuated and unsatisfactory, and (2) irremediable injury would likely follow a dissolution, or where it would defeat all practicable relief if the complainant should finally establish his right the injunction should be retained until the case can be fully developed and fully heard on its merits; or, to sum up the whole matter in short, a temporary injunction should not be dissolved on motion, but should be retained for final hearing or for full proof where such a course is necessary to do complete justice between the parties."
Applying these principles, we cannot say that the chancellor erred in overruling the motion to dissolve the injunction.
Affirmed in part, reversed in part, and remanded.
ON SUGGESTION OF ERROR.
Appellant's examination of appellee as an adverse witness developed that appellant leased from appellee her plantation for a period of ten years, beginning with the year 1921, at an annual rental of two thousand dollars per year. Appellee showed by her testimony that this lease was in writing, which was offered in evidence. Appellee testified, however, that the annual rental of two thousand dollars was never paid by appellant. This evidence was admitted over the objection of appellee. Appellee contends that the question of the admissibility of this evidence is one of the governing principles of the cause, which the court ought to settle on this appeal, for the guidance of the trial court on the hearing of the cause on its merits.
The granting of an appeal to settle the principles of a cause does not necessarily bring before the supreme court all the questions presented to and passed upon by the trial court, but only such questions as are raised by the appellant's assignment of errors. In the opinion handed down in this case, as we understand the record, and the written and oral arguments of the attorneys for the respective parties, all the questions raised by appellant's suggestion of errors were decided. We did not pass on the question of the admissibility of appellee's testimony with reference to the lease, because it was not presented for decision. Appellant did not, and could not, have assigned the action of the court in overruling appellee's objection to the testimony as error, because it was testimony offered by appellant, and the ruling of the court was, therefore, in appellant's favor. If appellee deemed that the question involved one of the controlling principles of the cause, which should have been settled on appeal, it was her duty to take a cross-appeal, and file a cross-assignment of error, setting upon the action of the court in that respect as error.
Appellee argues, further, that the question should be determined on this appeal whether, on the trial of the cause on its merits, when it goes back, the testimony given by appellee on the motion to dissolve the injunction will be admissible under section 1917, Code of 1906 (section 1650, Hemingway's Code of 1927), which provides, among other things, that a party to a cause shall not be a competent witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person; the appellant having died pending the appeal.
This question was not, and could not have been, presented to the trial court, because at that time the appellant was alive. Under the Constitution, the supreme court is a court of appeals; it has no original jurisdiction. It can only review and decide questions that may arise on another trial of the cause, when it is remanded to the trial court.
In other respects appellee's suggestion of errors is only a reargument of the questions decided in the opinion handed down. We have given these questions the most thorough consideration of which we are capable, and we see no sound reason for changing our views with reference thereto.
Suggestion of error overruled.