Opinion
No. 35103.
November 9, 1942.
APPEAL AND ERROR.
A decree dissolving a preliminary injunction with damages which did not dispose of all the issues raised by the bill was an "interlocutory decree" and an appeal therefrom which was not applied for and bond given within 30 days after decree was filed, as required by statute, would be dismissed (Code 1930, sec. 14).
APPEAL from the chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Campbell Campbell, of Yazoo City, for appellees.
The appeal was not perfected in time.
Wilson v. Pugh, 61 Miss. 449; Sowell v. Sowell, 101 Miss. 623, 57 So. 626; Repsher v. Lumber Mfg. Co., 113 Miss. 46, 73 So. 868; Rylee v. Bank Trust Co., 122 Miss. 385, 84 So. 247; Miss. Code of 1930, Sec. 14. Henry Barbour, of Yazoo City, for appellant.
We frankly are in an anomalous situation. We regard this decree appealed from as an interlocutory decree from which an appeal was taken more than thirty days after the said decree was rendered and less than six months thereafter.
The appeal bond was prepared by the attorneys for the appellant and sent to her, but unfortunately was returned after the thirty days had expired and was not filed until January 16, 1942. In the meantime, the appellees filed a motion to dismiss the original bill.
The case has not yet been heard on its merits.
The decree appealed from shows that the case was not tried on its merits but on the motion to dissolve the injunction, followed by the answers of the defendants and the notice and the suggestions of damage.
The appellees contend that the decree appealed from was a final decree, and, after the court had overruled their motion to dismiss the original bill, the appellees threatened to issue execution on their judgment. The six months had not yet expired, and purely as a precaution we filed an appeal bond, which we misconceived to be the easiest way to stop an execution and would save us the necessity of enjoining an execution. At the same time, if it should develop that Judge Montgomery was wrong in overruling the last motion to dismiss the original bill, we were within our rights to appeal from a final decree.
We expected to have the case tried on its merits before the time for this record to go up, and we did our best to prevent the record from going up at all.
We anticipate that the court will hold that this is merely an interlocutory decree which can be changed when the case is heard on its merits and, therefore, that the appeal is improper.
The bill was filed in this case to remove clouds upon title and for injunction. Preliminary injunction was granted which later, on motion of defendant, appellee here, was dissolved with damages. The decree of dissolution was entitled as such, and upon petition of appellant the chancellor granted an appeal in order to settle the controlling principles involved in the cause.
Appellees thereafter moved to dismiss the original bill, but such motion was denied by the chancellor on the ground that the said decree "did not dispose of all the issues raised by the bill." Appellees now seek to have the appeal dismissed on the ground that the appeal is from an interlocutory decree and was not applied for and bond given within thirty days after the decree was filed. Code 1930, sec. 14. Such being the fact, no authority is needed to sustain appellees' right to have the appeal dismissed. Motion to such effect was filed at an earlier day of this term but it was considered proper to hear such motion along with the appeal on its merits. This course was suggested by the uncertainty of the positions taken by respective counsel who risked inconsistency in their contentions by construing the appeal both as from an interlocutory and a final decree, in either of which cases there appeared advantages to one or the other. Upon our examination of the record, we find that both the chancellor and the appellant have treated the decree as interlocutory and the appeal therefrom is therefore untimely. The motion to dismiss the appeal is therefore granted. Other relief asked in the motion is pretermitted to abide the event of the cause on its merits.
Appeal dismissed.