Dunagin v. First National Bank

80 So. 276 | Miss. | 1918

Stevens, J.,

delivered the opinion of the court.

Appellee instituted this action against appellant in the circuit court of Jones county. The defendant filed several pleas to the jurisdiction, in one of which it was averred that there had been dealings between the parties extending over a period of sixteen years; that the total amount of business done between the parties on these accounts amounted to large sums; that, there were numerous and sundry loans and transactions upon which the plaintiff has exacted and collected usurious interest; and that the sums paid as unlawful interest amounted to more than the total of the amount sued for. Upon the coming in of these pleas the plaintiff moved the circuit court to transfer the case to the chancery court, in order that the many matters of mutual account might be inquired into and a true accounting had. This motion was by the court sustained, and a judgment duly entered transferring the case to the chancery court. From this judgment appellant, as defendant in the court below, now attempts to prosecute an appeal. Appellee moves this court to dismiss the appeal for want of jurisdiction. There is then involved in this controversy the right of a party litigant to appeal from a judgment of the circuit court transferring the case to the chancery court.

In Robertson, State Revenue Agent, v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, there was an appeal from the interlocutory decree of the chancery court transferring the case to the circuit court. We there assumed jurisdiction of the appeal, but justified our action upon the statutory right of the chancellor to grant an appeal from interlocutory decrees, and on the fact that the chnaeellor in that case had expressly granted an appeal. There was a demurrer to the bill in the case referred to. The demurrer was sustained, and a decree entered transferring the cause to the proper tribunal. The present case presents a different question. Our statute (section 33, Code of 1906; section 8, Hemingway’s Code) expressly authorizes appeals to be taken from any final judgment of the circuit court in a civil case. It has been ruled that a final judgment, within the meaning of the statute, is a judg ment adjudicating the merits of the controversy. G. & S. I. R. Co. v. Williams, 109 Miss. 549, 68 So. 776. In the present case the order transferring the case simply dealt with the question as to the proper or best forum in which the issues could best be inquired into and adjudicated. The circuit court decided nothing on the merits, and the judgment appealed from is not a final judgment within the statute. Section 532, Code of 1906 (section 289, Hemingway’s Code), under paragraph (g), makes it the duty of the chancery court to assume jurisdiction of “all cases transferred to it by the circuit court, or remanded to it by the supreme court.” Looking to the pleadings in this case, there is no impropriety in our saying frankly that the cause was one that could more properly be dealt with in a court of equity.

From the foregoing expression of our views, it follows that this appeal is not authorized by statute, and that this court is without jurisdiction. The motion will be sustained, and the appeal dismissed.

Motion sustained.