Opinion
No. 31470.
December 3, 1934.
1. APPEAL AND ERROR.
No appeal is allowable from circuit court judgment unless judgment is in all respects a final judgment (Code 1930, secs. 13, 3361).
2. APPEAL AND ERROR.
In quo warranto proceeding, order ruling on demurrer, and which went no further than simply to rule on demurrer, was not appealable "final judgment" (Code 1930, secs. 13, 3361).
3. APPEAL AND ERROR.
Statute allowing interlocutory appeals applies only to chancery courts (Code 1930, sec. 14).
APPEAL from the Circuit Court of Wayne County. HON. J.D. FATHEREE, Judge.
Action by the state, on the relation of G.L. Rice, Attorney-General against U.S. Large, in which an order was made allowing an appeal by plaintiff. Appeal dismissed.
See, also, 164 Miss. 318, 145 So. 346.
L.K. Saul, of Ellisville, for appellant.
The law requires that the appellee be eligible and qualified to hold the office at the time of his election and any subsquent qualification is not sufficient to entitle him to hold the office.
Section 6563, Code of 1930; State ex rel. v. McDonald, 164 Miss. 405, 145 So. 508; Raone v. Mathews, 75 Miss. 94; Covington v. Andrews, 69 Miss. 740; 56 C.J., p. 288, sec. 144.
The obtaining of the required certificate is a prerequisite and his election was void.
Wayne County v. Hopper, 114 Miss. 755, 75 So. 766; 56 C.J., p. 370, sec. 265, and page 417, sec. 366; Sections 6200 and 6202, Code of 1930.
A.G. Busby, of Waynesboro, for appellee.
The judgment where the court has jurisdiction of subject-matter and parties, its judgment is not alone res adjudicata of the questions specifically presented by the pleadings, but is also res adjudicata of all questions necessarily involved and which have been presented. The only way to question the law in case is to appeal in time allowed by law.
Scott County v. Dubois, 130 So. 106; Bates v. Strickland, 103 So. 432.
An information in the nature of a quo warranto was filed by the attorney-general against appellee challenging the right of appellee to hold the office of superintendent of education of Wayne county. The defendant appeared and filed two special pleas, to each of which pleas the state demurred and the demurrers were overruled. No further steps were taken so far as appears of record and no final judgment was rendered by the court. But on the same day that the demurrers to the pleas were overruled, an application was made to the court to allow an appeal, and three days later an order was made allowing the appeal "to settle the principles of law involved in said suit."
No appeal is allowable from a circuit court judgment unless the judgment is in all respects a final judgment, sections 13, 3361, Code 1930, Moore v. Montgomery Ward Co. (Miss.), 156 So. 875; and, of course, an order ruling on a demurrer, and which goes no further than simply to rule on the demurrer, is no final judgment, Pine Lbr. Co. v. Covington County, 87 Miss. 706, 40 So. 260. The statute allowing interlocutory appeals, section 14, Code 1930, applies only to chancery courts.
This court has no jurisdiction of the appeal here sought to be presented, and it must be dismissed.
Appeal dismissed.