Liberty Trust Co. v. Planters' Bank

• Decision Date: 28 October 1929
• Docket Number: 28086
• Citation: 155 Miss. 721,124 So. 341
• Parties: LIBERTY TRUST CO. et al. v. PLANTERS' BANK
• Court: Mississippi Supreme Court

124 So. 341

155 Miss. 721

LIBERTY TRUST CO. et al. v. PLANTERS' BANK

No. 28086

Supreme Court of Mississippi

October 28, 1929

Division B

1. APPEAL AND ERROR. Supreme court has no jurisdiction of appeals from interlocutory decrees, except strictly within terms of statute (Laws 1924, chapter 151, section 17).

Supreme court has no jurisdiction of appeals from interlocutory decrees, except strictly within terms of Laws 1924, chapter 151, section 17.

2. APPEAL AND ERROR. Supreme court must raise question of jurisdiction on appeals from interlocutory decrees.

Want of jurisdiction of appeals from interlocutory decrees may be raised by supreme court, not merely as privilege, but it must do so as a duty.

3. APPEAL AND ERROR. Where appeal from interlocutory decree would settle only part of principles, and applied only to some parties, supreme court must dismiss appeal ex mero motu (Laws 1924, chapter 151, section 17).

Where appeal from interlocutory decree would settle only part of principles, and applied only to some of parties, and would not settle all the controlling principles involved in the cause, as provided by Laws 1924, chapter 151, section 17 supreme court must dismiss appeal ex mero motu.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Leflore county, HON. R. E. JACKSON Chancellor.

Suit between the Liberty Trust Company and others and the Planters' Bank. From an interlocutory decree, the former appeals. Affirmed.

Appeal dismissed.

Pollard & Hammer, of Greenwood, for appellant.

Roberson & Cook, of Clarksdale, for appellee.

(NOTE: The Briefs of Counsel were addressed to merits of the case and not to jurisdiction.)

OPINION

Griffith, J.

In this state, and in practically all the states, no appeal is allowed to the supreme court from judgments at law, unless the judgment is a final judgment; and the same rule is observed in nearly all the states in respect to decrees in chancery. We believe the only exceptions are in those few states which have borrowed from Virginia, said to be the originator of the exception, a statute providing for the allowance of an appeal from an interlocutory decree in equity, when the interlocutory decree is one "adjudicating the principles of the cause." This exceptional statute found its way into our state in the original act creating the court of chancery, and is section 37 of that act, passed November 27, 1821 (Poindexter's Code 1824, p. 93). It is a part of the judicial history of this state that the act last mentioned was drawn by Governor George Poindexter, a native of Virginia, and who in the first official Code of this state, known as Poindexter's Code, brought numerous features of the Virginia law into our statutes. In our earlier statutes, and up to the statute of 1924, the expression used has been "in order to settle the principles of the cause," but the meaning is substantially the same.

Both Virginia and West Virginia have construed the statute as meaning that an appeal may not be allowed under it, when only a part of the principles of the case are adjudged by the decree, or would be settled by the appeal. In Wood v. Harmison, 41 W.Va. 376, 23 S.E. 560, 561, citing Shirey v. Musgrave, 29 W.Va. 131, 11 S.E. 914, it is said: "This statute authorizes an appeal under this clause only when the decree adjudicates all questions raised in the cause by pleading or otherwise, and that, if any one of a number of questions involved, is left, undetermined, it is not appealable. " The court, on page 380 of 41 W.Va. (23 S.E. 561), had also said: "It would not do to allow an appeal from any decree or order just because it settled something in the case, though important, leaving important subjects yet untouched; for that would greatly delay the lower court, by repeated appeals, and fill the appellate court with innumerable appeals." And again on the same page the court said further that an interlocutory decree, in order to be appealable, must be one "adjudicating the principles of the cause--not part of them, but all of them, as it was not intended that a dozen decrees, disposing of the matters in controversy by piecemeal, should each be appealed." The West Virginia court had at an early day in that state in Buehler v. Cheuvront, 15 W.Va. 479, held to the same effect, and in Lancaster v. Lancaster, 86 Va. 201, 9 S.E. 988, the supreme court of appeals of Virginia adopted the same view, citing with approval the West Virginia case last mentioned.

It will be observed that the statute was sought to be made available in those states when only a part of a case, or a part of the principles involved, would be settled, and the experience in this state has been of a like kind. In Ward v....