Sowell v. Sowell

• Decision Date: 26 February 1912
• Court: Mississippi Supreme Court
• Parties: MATT T. SOWELL ET AL. v. JOHN L. SOWELL ET AL

57 So. 626

101 Miss. 623

MATT T. SOWELL ET AL. v. JOHN L. SOWELL ET AL

Supreme Court of Mississippi

February 26, 1912

October 1911

APPEAL from the chancery court of Panola county, HON. D. M KIMBROUGH, Chancellor.

Suit by Matt T. Sowell et al. against John L. Sowell et al. From a judgment ordering sale of lands for partition, defendant appeals.

The appellee filed a bill in chancery against appellants alleging that they were tenants in common of certain lands described in the bill, and praying for a sale of said lands for a division of the proceeds among the owners according to their respective interests. Appellants who were defendants below, answered, denying that appellees, complainants below owned any interest whatever in the land. Upon the hearing the chancellor entered a decree in favor of complainants, and ordered the lands to be sold for a division of the proceeds, and appointed the chancery clerk as special commissioner of the court to make the sale in accordance with the terms of the decree and report his actions to the next term of the court after such sale, or to the chancellor in vacation. No appeal was obtained at the time, and the decree grants no appeal. Neither was a decree asked within ten days after the rendition of the decree, to wit, February 1, 1911. Afterwards, on March 25, 1911, the appellants filed a petition with the chancery clerk, praying an appeal with supersedeas.

When the case reached the supreme court, appellees filed the following motion: "Now come appellees, by their solicitors, and move the court to dismiss the appeal in this case, discharge the supersedeas herein granted, and for an order directing the special commissioner appointed by the court below to proceed to carry out the mandates of said decree, and for grounds for said motion say: (1) This is an appeal from an interlocutory decree of the chancery court, and no appeal was granted by the chancellor in term time, nor in vacation within ten days after the date of the decree complained of, in order to settle the principles of the case, or to avoid expense and delay. (2) No appeal has been granted by the chancellor, either in term time or in vacation, for any purpose whatsoever, and none applied for."

Dismissed.

L. F. Rainwater, for appellants.

The decree in the case at bar adjudges complainants and defendants to be tenants in common of the land, declares the deed under which defendants claim exclusive title null and void, and directs the clerk and master to cancel the same upon the records in his office, and decrees that defendants pay the costs; in fact adjudicates everything in controversy, leaving only the confirmation of the sale which, under the decree, may be done in vacation and concerning which there is no controversy.

I respectfully submit that under the definition of a final decree as announced by this court in the case of Humphreys v. Stafford, 71 Miss. 135, quoted supra, this decree is final.

It is true that in ordinary suits for partition where the rights of the parties are not finally adjudicated, but reserved until the coming in of the commissioner's report, the first decree is interlocutory; but when the rights of the parties had been adjudicated in the first decree, it is final. 71 Miss. 135; 5 Am. & Eng. Ency. Law (1 Ed.), 373, and note, title Partition; Whiting v. Bank, 15 Peters, U.S. 9; French v. Shoemaker, 12 Wallace, U.S. 98.

In this latter case (12 Wallace) the court uses this language: "A decree of foreclosure and sale of mortgaged premises is a final decree, and that the defendant is entitled to his appeal without waiting for the return and confirmation of the sale by a decretal order, upon the ground that the decree of foreclosure and sale is final as to the merits and that the ulterior proceedings are but a mode of executing the original decree."

So in 5 Am. & Eng. Ency. Law, cited supra, 373, it is stated, "A final decree is one which determines the rights of the parties in the suit or an independent branch of it," and in the note under the title Partition, same page, it is stated:" But when the first decree in partition settles the rights of the parties it is final." See, Ansley v. Robinson, 16 Ala. 793; Benton v. Campbell Heirs, 2 Dana Ky. 421; Damouth v. Klock, 28 Mich. 163. None of the authorities cited by counsel for the motion are applicable to the facts in the case at bar. In the case of Gilleylen v. Martin, 73 Miss., cited by counsel, the decree directed a partition to be made by the commissioners if it can be fairly and equitably done, and, if not, they are directed to so report to the next term of the court. It also directed the assignment of dower. The rights of the parties had not been adjudicated, and it did not appear that partition could be made, but the whole matter was still held in abeyance until the coming in of the report.

In the case of Beeks v. Rye, 77 Miss., cited by counsel there was no controversy upon the hearing of the original petition; in fact none of the parties defendant appeared. It was an ordinary proceeding in partition, the decree directing a sale on a twelve months' credit, and directing the costs to be paid out of the proceeds of sale. It provided that the executor's solicitors be allowed a reasonable fee, the same to be fixed on the coming in of the report, and "that the remainder of the proceeds of said property be distributed in accordance with the interests of defendants as shown in said petition," and the executor was directed to report all his actings and doings, etc. A will was filed with the petition as a part thereof, the will being a part of the petition and pointing out who the parties were to whom distribution should be made, and all matters in controversy being thus left open until the final decree, it was interlocutory.

The case of Sweatman v. Dean, cited by counsel, in which the opinion was rendered by Cox, special judge, was a proceeding for partition in kind, which did not attempt to divest title out of the parties nor cancel any muniment of title, and it does not appear that the claim of Sweatman was even...