Bowman v. Empson

• Decision Date: 07 December 1931
• Docket Number: 29611
• Citation: 162 Miss. 13,138 So. 341
• Court: Mississippi Supreme Court
• Parties: BOWMAN et al. v. EMPSON

138 So. 341

162 Miss. 13

BOWMAN et al. v. EMPSON

No. 29611

Supreme Court of Mississippi

December 7, 1931

Division B

1 COURTS.

Parties may agree that chancellor should hear and determine cause in vacation (Code 1930, section 320).

2 COURTS.

Hearing before chancellor in vacation on bill seeking injunction only, in view of proceedings had, will be treated as being by consent (Code 1930, section 320).

3. APPEAL AND ERROR.

Decree which finally determines case on its complete merits, and does not omit or reserve any material issues on merits for future determination, is "final."

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Pike county HON. R. W. CUTRER, Chancellor.

Suit by W. M. Empson against H. Bpwman and others. From the judgment rendered, the defendants appeal. Affirmed.

Affirmed.

Price, Cassidy & McLain, of McComb, for appellants.

The former appeal taken by the appellants to the Supreme Court of the State of Mississippi was futile and abortive, and was taken because of a mistake and misapprehension on the part of the solicitors for appellants therein.

The bill was only for injunction relief, and as the court then refused to dissolve the injunction, and as the court required the movants to take the burden, it is obvious that the decree was interlocutory, and was not final.

The appellants further respectfully call the attention of the court to the fact that nowhere in the record and in no decree granted by the chancellor, and by no implication, was the original appeal taken to settle the principles of the case, which is the only ground upon which an appeal from an interlocutory decree may be taken to this court when rendered in a cause peculiarly circumstanced as is the case at bar. Therefore, under no possible stretch of the imagination can the decree, original Supreme Court record Exhibit B to this record, be regarded as anything but an interlocutory decree from which no appeal could be legally taken.

We, therefore, respectfully insist that the original appeal was out of time, was abortive, and conferred no jurisdiction upon the Supreme Court, and that therefore the cause was pending in the chancery court of Pike county, Mississippi, for final hearing on the merits, and with the full burden to prove the bill of complaint on the complainant if he expects to perpetuate his original writ.

Section 14, Mississippi Code of 1930.

The denial of a motion to dissolve the injunction is not conclusive of the rights of the parties, and on final hearing complainant may be refused relief.

32 C. J. 430; Griffith's Mississippi Chancery Practice, section 255, page 481.

The agreement to have the hearing treated as final is absolutely essential in order to take the decree out of the class of "interlocutory decrees" and in order that an appeal may be had therefrom.

Williams & Hunt, of McComb, for appellee.

The chancellor was entirely correct in overruling the motion to re-docket, and in sustaining the plea in bar, for to have held otherwise would have been clearly in controversy of all laws, and of all the rules of the Supreme Court, and would have established the most annoying and hurtful precedence in the history of jurisprudence, for if an appellant could sit idly by and allow his cause to be dismissed by the Supreme Court for want of prosecution, and then avail himself of every legal safeguard guaranteed by the rules of the Supreme Court of the State of Mississippi, wherein he was permitted to file a motion to re-instate and accompanied said motion by an affidavit, setting forth probable cause, and when this was presented to the court, and it appeared that appellant was deprived of no legal right, and there was no probable cause, and issued its solemn mandate to the court below, if then by law appellant could come back to the lower court and file a motion to reinstate, and have said cause reinstated and redocketed, and again appeal to the Supreme Court, no human being could ever tell termination of any litigation.

OPINION

Ethridge, P. J.

On March 25, 1929, the appellee, Empson, filed a bill in the chancery court of Pike county, Miss., praying for an injunction against the appellants to restrain them from violating a contract made an exhibit to the bill, and setting forth certain violations thereof, also as exhibits, and which contained other contracts alleged to be in violation of the complainant's right. The chancellor set June 10, 1929, for hearing of the bill of complaint as to whether a preliminary injunction should be granted. The defendants filed an answer to the bill prior to noon on said day, setting forth their defenses to the said suit, with certain exhibits thereto attached. This bill was sworn to on the 7th day of June, and was filed on the 10th, on which day the chancellor granted the injunction prayed for, fixing the bond therefor at $ 100.

Subsequently the appellants moved to increase the bond, and also moved for dissolution of the preliminary injunction on bill, answer and proof. By an order the chancellor set August 27, 1929, for hearing of the said motions, and on that day a hearing was had on bill, answer, exhibits, and proof. The chancellor took the cause under advisement, and on the 23d day of October, 1929, the chancellor, in vacation, granted Empson a decree holding that the preliminary injunction was rightfully sued out, and refusing to dissolve the same, and that the injunction originally issued stand in force, and taxed the defendants with the costs. From that decree an appeal was prosecuted to this...