Seaney v. Seaney
| Decision Date | 27 January 1969 |
| Docket Number | No. 45382,45382 |
| Citation | 218 So.2d 5 |
| Parties | Judy SEANEY v. James W. SEANEY, Sr. |
| Court | Mississippi Supreme Court |
Judy Seaney seeks to appeal with supersedeas from a decree of the Chancery Court of Rankin County dated September 27, 1968, and styled 'Temporary Decree,' which purports to modify a decree of that court entered June 6, 1968. The earlier decree had granted appellant a divorce from appellee, James W. Seaney, Sr., and had awarded to her the custody of their 3 year old child.
Appellee, James W. Seaney, Sr., has moved to dismiss the appeal upon the ground that the decree sought to be appealed from is interlocutory in character and does not come within any of the categories enumerated in Mississippi Code 1942 Annotated section 1148 (1956) in which interlocutory appeals are permitted.
The proceedings out of which the present appeal arose were begun on August 6, 1968, by appellee with the filing of a petition to modify the provisions of the June 6th decree relating to custody of the child. On September 27, 1968 three decrees were entered consecutively by the chancellor. First, a decree was entered entitled 'Decree Modifying Former Decree.' This decree made certain modifications in the custodial provisions of the June 6th decree and was predicated upon this recital: '* * * the court being fully advised and is satisfied and does find * * *' Later on the same day, the court, on its own motion, entered an order vacating this decree. Later still, but on the same day, the court entered the decree from which appellant now seeks to appeal. This decree is styled 'Temporary Decree,' and contains substantially the same changes from the custodial arrangements established by the June 6th decree. It recites: '* * * the court having heard all of the evidence and being fully advised is satisfied and does find * * *' The objective of the present appeal is the reversal of this decree and reinstatement of the custodial provisions of the June 6th decree.
Recitals in appellant's brief are to the effect that the 'Temporary Decree' was entered arbitrarily by the chancellor, without hearing any evidence whatever, that it is by its terms a final decree, and that the record before us on this appeal is sufficient to demonstrate that the chancellor was manifestly wrong in modifying the June 6th decree and to warrant reversal by this Court.
The appeal record filed in this Court consists exclusively of the pleadings, decrees and certificates of the clerk and court reporter, the certificate of the latter reciting: 'I did not make any notes of any testimony or evidence in the above styled cause at the September, 1968 term of the court, including September 27, 1968.'
No evidence, either oral or documentary, except as noted, appears in the record. In Griffith, Mississippi Chancery Practice section 675 (2d ed. 1950) it is stated that: 'the appellate court is confined to the face of the record in the trial court * * * It cannot accept affidavits, or statements or even evidence as to any facts not a part of the trial record * * *'
Of the several recognized methods whereby a record of trial proceedings may be preserved for use on appeal, none seems to have been pursued in this case. The present record is silent as to any offer of proof by appellant nor does it reflect a denial by the court of such an offer. Nor does it appear that a bill of exceptions was reserved or sought. Mississippi Code 1942 Annotated § 1313 (1956).
Appeals from interlocutory decrees are not favored and are limited to the cases categorized in section 1148, supra. Griffith, Mississippi Chancery Practice section 609 (2d ed. 1950) contains a discussion of the question of when a decree is a final decree:
An interlocutory decree is one made by the court during, and with regard to, the progress of the case, and which embodies a determination of some matter preparatory to the full hearing on the merits or which is conservative of the interests of the parties pendente lite; or which while affecting the merits yet reserves, either in terms or by necessary implication, some portion of the merits for future adjudication: in brief, any decree that precedes the final decree is an interlocutory decree. A final decree is one which finally determines and settles the case on its complete merits-which neither omits nor reserves any of the material issues with respect to the merits-and leaves nothing remaining to be done, except those merely formal, or ministerial or executive subsequent orders or decrees necessary or proper to enforce the final decree. The decree is final when it terminates the actual litigation between the parties and leaves nothing to be done except to enforce what has been determined.
In paragraph 627 of the same work, Judge Griffith states that a decree should contain a statement of the pleadings upon which it is based and
Griffith, Mississippi Chancery Practice section 594a (2d ed. 1950) comments upon Mississippi Code 1942 Annotated section 1390 (1956). This statute provides:
'(T)he chancery court in all litigated cases, upon the request of any party to the suit, shall find the facts specially and state separately its conclusions of law thereon, and its findings and conclusions shall be entered of record and, if an appeal is taken from the decree, shall be included by the clerk in the record which is certified to the Supreme Court.'
The succeeding section emphasizes the necessity for a request for such findings. Section...
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