Levy v. Rossel

• Decision Date: 02 March 1903
• Citation: 33 So. 651,82 Miss. 68
• Court: Mississippi Supreme Court
• Parties: SAMUEL LEVY v. THOMAS J. ROSSEL ET AL

33 So. 651

82 Miss. 68

SAMUEL LEVY v. THOMAS J. ROSSEL ET AL

Supreme Court of Mississippi

March 2, 1903

[Motion.]

FROM the chancery court of Harrison county. HON. STONE DEAVOURS Chancellor.

Rossel and another, appellees, were complainants in the court below Levy, appellant, and others were defendants there. When the case reached the supreme court on Levy's appeal appellees moved the court to dismiss the same. The facts relating to the motion are fully stated in the opinion of the court overruling the motion.

Motion denied.

Ford & White and Dodds & Griffith, for the motion.

The appeal in this case is not warranted by code 1892, section 34. The general rule is that appeals only lie from final decrees. The present appeal, not being authorized by statute, should be dismissed. Hanon v. Weil, 69 Miss. 477; Pearson v. Kendrick, 74 Miss. 240; High v. Receivers, sec. 25; Beach v. Receivers, sec. 40.

Harper & Harper, against the motion.

The petitioner for the appeal brings himself clearly within § 34, code 1892, as the decree required money to be paid and the possession of property to be changed, and, further, the appeal was applied for within ten days after the date of the decree complained of and an appeal bond, with two good and sufficient sureties, was tendered with the application; we are clearly within both of said sections of the code in which an appeal is expressly given as of right and not as a matter of discretion. Vause v. Woods, 46 Miss. 120; Hill v. Robertson, 23 Miss. 306; Simmons v. Henderson et al., Freeman's Chancery Reports, p. 500.

OPINION

TERRAL, J.

The creditors of Levy & Bellande--the latter being dram-shop keepers in Biloxi--filed their petition in the chancery court of Harrison county to have a receiver appointed to take charge of the moneys and effects of Levy & Bellande, and to administer them for the benefit of the petitioners. No objection was made by Levy & Bellande to the appointment of a receiver, but Levy alleged that he was a householder and the head of a family, residing in the city of Biloxi, and that he was entitled to and claimed an exemption of $ 250 in said assets of Levy & Bellande. The court, without noticing Levy's claim of exemption, made an order placing the moneys and other assets of Levy & Bellande in the hands of a receiver, from which order Levy asked an appeal to the supreme court, which the chancellor refused. Levy then applied to a justice...