Bradley v. Holmes, 42017

• Citation: 134 So.2d 494,242 Miss. 247
• Decision Date: 13 November 1961
• Docket Number: No. 42017,42017
• Parties: Sam BRADLEY, Jr., et al. v. J. P. HOLMES and Ed Glassco, d.b.a. Ed Glassco Used Cars.
• Court: United States State Supreme Court of Mississippi

Page 494

134 So.2d 494

242 Miss. 247

Sam BRADLEY, Jr., et al. v. J. P. HOLMES and Ed Glassco, d.b.a. Ed Glassco Used Cars.

No. 42017.

Supreme Court of Mississippi.

Nov. 13, 1961.

Howard Dyer, Jr., Greenville, for appellants.

Farish, Keady & Campbell, Greenville, for appellees.

ETHRIDGE, Justice.

Sam Bradley, Jr., and others, brought this action in the Circuit Court of Washington County as the next of kin of Sam Bradley, III, alleging that his death was caused by the negligence of defendant J. P. Holmes in an automobile collision. It was charged that defendant Glassco was the employer of Holmes, and when the automobile collision occurred, Holmes was driving his car in the course of his employment for Glassco; and further, that Glassco under the circumstances was estopped to deny the agency of Holmes. After trial, the court gave a peremptory instruction for Glassco, holding that plaintiffs failed to show any agency. The case was submitted to the jury as against Holmes, but it was unable to agree on a verdict.

Hence the judgment of the circuit court ordered that plaintiffs take nothing against Glassco, and the suit as to him was finally dismissed; 'and it is further ordered and adjudged that because of the hung jury, a new trial be ordered at the June 1961 term to try the issues between plaintiffs and the remaining defendant, J. P. Holmes.' This appeal is from that judgment.

We have concluded that this judgment is not a final one, and the appeal is premature. For that reason, we raise this question of appellate jurisdiction on our own motion and dismiss the appeal.

Miss.Code 1942, Rec., Sec. 1147, provides: 'An appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case * * *.'

In our practice there is no interlocutory appeal from the judgment of a circuit court, except where the sole ground of an order for new trial is the excessiveness or inadequacy of damages. Code Sec. 1536. There may be an interlocutory appeal from an order or decree of the chancery court if certain restrictive conditions exist. Miss.Code 1942, Rec., Sec. 1148.

Generally an appeal will not lie unless there has been a final disposition of the case, not only as to all of the issues, but also as to all of the parties to the suit. 4 C.J.S., Appeal and Error, Sec. 104. The judgment must dispose of the cause as to all of the parties, reserving no further questions for future determination. 2 Am.Jur., Appeal and Error, Sec. 22. Since a judgment is not final which settles a case as to a part only of the defendants, an order which dismisses the suit as to a part only of them, all of whom are charged to be jointly liable, is not a final judgment from which an appeal will lie, while the case remains undisposed of in the lower court as to the other defendants. Ibid., Sec. 27; Annos., Judgment or Order Dismissing Action as Against one Defendant as Subject of Appeal or Error Before Disposition of Case as Against Co-Defendant, 80 A.L.R. 1186 (1932), 114 A.L.R. 759 (1938). A narrow exception to this rule exists where a decree dismisses one or more or a larger number of defendants whose interests are not at all connected with the other. We do not think this case falls within that exception. Code Sec. 1147 and prior decisions show that this Court has consistently followed the stated general rule.

In Dickerson v. Western Union Telegraph Company, 111 Miss. 264, 71 So. 385, 386 (1916), Dickerson sued both Western Union and Postal Telegraph. The trial court sustained Western Union's demurrer to the declaration, the case was tried against Postal Telegraph, and judgment entered in its favor. Dickerson then appealed, and Western Union moved to dismiss because the appeal had not been taken as to it within the statutory two years from the time its demurrer was sustained. The motion was overruled. It was held that the limitation period for appeals would not begin to run until 'final judgment was entered by the court in favor of the last defendant and terminating the entire suit.' The Court said: 'If the motion is well taken in this case, then a plaintiff seeking to recover against several defendants would be in many instances obliged to split his cause of action on appeal and to prosecute two or more appeals, when one appeal can take care of the interests of all parties.' Quoting authorities, the Court said that a judgment is not final which settles the cause as to a part only of the defendants. An appeal will not lie unless there has been a final disposition of the case as to all of the parties.

Mulholland v. Peoples Bank of Biloxi, 187 Miss. 608, 192 So. 308, 310 (1939), reached the same conclusion under similar circumstances. It was said that 'appeals should not be taken by piecemeal.'

Federal Land Bank v. Kimbriel, 174 Miss. 153, 163 So. 501, 502 (1935) involved a suit in chancery court against seven defendants, four of whom filed a special demurrer, which was sustained, and the chancellor allowed an interlocutory appeal...