Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co

• Decision Date: 10 February 1936
• Docket Number: 32106
• Court: Mississippi Supreme Court
• Parties: MARQUETTE CEMENT MFG. CO. v. NEW AMSTERDAM CASUALTY CO

165 So. 615

174 Miss. 843

MARQUETTE CEMENT MFG. CO. v. NEW AMSTERDAM CASUALTY CO

No. 32106

Supreme Court of Mississippi

February 10, 1936

Division B

APPEAL AND ERROR.

Order transferring cause from chancery to circuit court, held not appealable (Code 1930, section 14).

HON. N R. SLEDGE, Chancellor.

APPEAL from the chancery court of Marshall county HON. N. R. SLEDGE Chancellor.

Suit by the Marquette Cement Manufacturing Company against the New Amsterdam Casualty Company. On defendant's motion, the chancellor transferred the cause to the circuit court, and plaintiff appealed. On defendant's motion to dismiss appeal. Appeal dismissed.

Appeal dismissed.

L. A Smith, Sr., of Holly Springs, and Julian C. Wilson and Lowell W. Taylor, both of Memphis, Tenn., for appellee, and movant.

The circuit court has jurisdiction of this case even if the transfer is wrongful.

Section 491, Code of 1930; Section 147, Constitution of 1890.

No appeal lies from an order of transfer made by a chancery court to the circuit court.

The appeal does not lie even though discovery or other equitable remedy is applied for in the case transferred. The statute which allows appeals to settle the principles of the case does not embrace an order of the chancery court made transferring a case to a circuit court.

Warner v. Hogin, 148 Miss. 562; Grice v. McCarty-Holman Co., 161 Miss. 827; Dilworth v. Federal Reserve Bank, 170 Miss. 375.

Lester G. Fant, Sr., and Jr., of Holly Springs, and Wm. M. and Wm. G. Hall, of Memphis, Tenn., for appellant.

The chancellor's action in this case is anomalous, amounting, practically, to denying appellant a right to the jurisdiction of his court under code section 173, after both he and the Supreme Court had held, in effect, that it had, which became the law of the case, and appellant with appellee's consent had proceeded in accordance therewith.

The case of Robertson v. Goodman, 115 Miss. 210, 76 So. 149, involved a situation more like that presented by the case at bar than does the case of Warner v. Hogan, 148 Miss. 562, which counsel for appellee cite and rely upon to support their contention that the action of the chancellor in the case at bar is not now reviewable in this court.

In the case at bar appellant as complainant contended that it had the right to bring its suit upon legal demands under code section 173 and its appeal is from an order which practically denies that right to it, after both the chancellor and this court had held that it had that right under that statute.

Mitchell v. Bank of Indianola, 98. Miss. 568, 54 So. 87; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48.

We do not mean to say that the chancellor would be without authority to transfer a case, after the Supreme Court had upheld the jurisdiction of his court, where the facts and circumstances of the case warranted. We do say, however, that there was no warrant under the facts and circumstances of this case for a transfer.

Appellee's motion to dismiss should be overruled and the question presented by the appeal be settled.

OPINION

Griffith, J.

This suit had been instituted in the chancery court, and, on motion of the defendant, that court transferred the action to the circuit court, but at the same time entered an order allowing an...