Anderson v. Henderson
| Decision Date | 23 December 1912 |
| Court | Mississippi Supreme Court |
| Parties | J. F. ANDERSON ET AL. v. T. R. HENDERSON ET AL |
October 1912
APPEAL from the chancery court of Leflore county, HON. M. E. DENTON Chancellor.
Suit by J. F. Anderson and others, against T. R. Henderson and others. From a decree dissolving an injunction and dismissing the bill, complainants appeal.
The facts are fully stated in the opinion of the court.
Overruled.
E. D Stone, for appellants.
Now come the appellants, by their attorneys, and for reply to the motion and brief filed in this cause say, that the motion is without merit, because the decree appealed from is a final decree, and the right to appeal and the manner of taking it is controlled by sections 33 and 50 of the Code of 1906 which control and have been complied with exactly; and the same is not controlled by section 35 of the Code 1906. The decree of the court not only dissolves the injunction on motion which was interlocutory, but the decree went further and dismissed the bill and the amendment to same. While that decree remains in force nothing else could be done by complainants. The case was finally disposed of and thus it was a final decree regardless of how many interlocutory questions might have been determined in arriving at the final result. This court said in Cook v. Bay, 4 Howard, 485, "A final decree is one which makes an end of the case, and decides the whole controversy; and determines the cases, and leaves nothing further for the court to act on," and this ruling has never been departed from.
In Humphrey v. Stafford, 71 Miss. 135, 14 So. 439, this court said, "A decree adjudicating everything material and which, when executed, will give all the relief that could be afforded, is final."
The case is further controlled by statute, section 621 of the Code of 1906 which says, "When, on motion, an injunction shall be wholly dissolved, the bill of complaint shall be dismissed, of course with costs, unless sufficient cause be shown against its dismission, at the next succeedng term of the court." Dedeyn v. Donnivan, 81 Miss. 696.
The first case cited in the brief under this motion, Wilson v. Pugh, 61 Miss. 449, does not apply to the present case, because in that case there was simply a dissolution of the injunction and dismissal of the bill. The brief for the motion states that and at the conclusion of Judge BRAME'S brief he says, "that wherever a case is properly pending in the court below and may be proceeded with there, it cannot be heard" (in the supreme court). The same criticism of the error of counsel in citing cases applies to 43 Miss. 304, because in that case the demurrer of the defendant to a supplementary bill had been overruled, and he appealed by petition to the clerk, and there had been no final disposition of the case. See statement by Judge SIMRALL, 43 Miss. 310. The same applies to Thompson v. Toomer, 50 Miss. 394, where Judge TARBELL says, at p. 395,
Johnston v. Jones, 51 Miss. 860, cited by the opposing counsel is not in point, because that was not a final decree appealed from, but as stated in the citation, it was "an appeal from a decree overruling a demurrer."
The case of Derdyn v. Donnivan does not sustain the contention of opposing counsel that it is an interlocutory decree, but proves conclusively that it is a final decree. In that case there was an application for an injunction; same was granted. Defendants answered, proof was taken, and the court rendered a decree on the facts, and as stated the grounds for the injuuction had been passed upon in the trial of the case, the court dismissed the bill, and in speaking of the case, Chief Justice WHITFIELD in 81 Miss. 700 says, "The bill heard was for injunction only; when the court dismissed the bill, the case was at an end, and it was entirely proper to allow the damages."
In the case at bar there was an application for an injunction to prevent a sale, as in the Derdyn case; there was an answer, taking of testimony, and hearing of all facts at issue, and a decree, not only dissolving the injunction, and allowing damages, but dismissing the bill and the amendment thereto. There is absolutely no merit in the contention raised by counsel, that we might have an appeal from that part of the judgment dismissing the bill and the amendment, but could not have an appeal from the other part of the decree dissolving the injunction, because the injunction was the only meat of the case, and if that is lost there is nothing left.
The case of Strong v. Harrison does not apply, because the court ruled that that case could have been retained in the chancery court, because the whole case had not been disposed of by decree. See statement of the case, 62 Miss. 61; there it says that under" a motion made by the defendants to dissolve the injunction, affidavits were read and much testimony heard in open court, and reduced to writing, and the chancellor rendered a decree dissolving the injunction as to a part only of the land, awarded the defendants seventy-five dollars for their attorney's fee and dismissed the bill." In that case it was manifestly wrong to dismiss the bill, because only a part of the defendants had answered and the chancellor only passed on a part of the property involved in the litigation. The court very properly held that the bill should have been retained, because there were the rights of other people, and other property in the litigation to be passed upon. In the case now under consideration, there was absolutely nothing left for future consideration.
In the case of Sowell v. Sowell, 57 So. 626, it was an interlocutory decree--one ordering land to be sold in partition proceedings--and not final, as in the case at bar, and therefore the appeal was dismissed.
In the case of Smith v. Holifield, 98 Miss. 649, cited by the opposing counsel, the court says: Thus we see that this decision rests on the foundation principle that it was an interlocutory decree appealed from, and not a final decree, as...
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