30 Miss. 218 | Miss. | 1855
delivered the opinion of the court.
This is an appeal from an interlocutory decree of the District Chancery Court at Columbus, overruling a demurrer to the bill,
The appellees move to dismiss the appeal, because no bond was required by the chancellor in granting the appeal, and none has been executed, and the question is, whether a bond is necessary in such a case, in order to an appeal.
It is settled by this court, that in case of a final decree in a court of chancery, the execution and approval of an appeal bond, are conditions precedent to the prosecution of the appeal, because such is the spirit of the statute authorizing the appeal. And the reason of the statute plainly is, that such an appeal prevents the successful party from proceeding to execute his decree.
But in the case of a demurrer to a bill overruled, no right to money or specific property is fixed, and no decree is prevented from being enforced by the appeal. Hence the statute does not in that case, as in the one of a final decree, provide that a bond shall be executed, nor can the provision of the statute, in the case of a final decree, be made applicablé'to siich interlocutory decree, because the condition of the bond prescribed by the statute “ to pay, satisfy, and perform the decree on final order” appealed from, would be entirely unsuitable, to the state of the case upon such interlocutory appeal. The order in such case is merely- that the defendant be required to answer the bill.
It is the practice generally, and we think it the better practice,
And afterwards the cause was submitted on final hearing in the court.
delivered the opinion of the court.
This is an appeal from an interlocutory decree of the District Chancery Court at Macon, overruling a demurrer to a bill.
It appears by the bill, that the complainants and defendants? who were creditors of one Reuben King, sued out attachments at law against him for a large amount, which were levied upon certain goods and merchandise, and that a third party laid claim to the property, under the statute for the trial of the title; that it was agreed between all the parties, that the sheriff should sell the goods attached, on a credit, taking notes to secure the payment of the purchase-money, and the proceeds to be paid to the successful party: that in the year 1848, the claim of property was defeated, and the plaintiffs in attachment obtained judgments; and there not being a sufficient amount of money to pay all the judgments, a motion for an appropriation of the fund was made in the Circuit Court; upon which the court ordered the money to be paid to the plaintiffs, according to the priority of the levies of the respective
To this bill the defendants demurred, assigning several grounds of error.
The first ground taken in support of the demurrer is, that the bill shows no ground of relief in equity as to Cay, because, it is said, he received the money upon his judgment, before notice of the writ of error, and while his judgment was in full force, and that he is not therefore liable to refund it.
The-second objection taken to the bill, is, that the claim is barred by the Statute of Limitations.’ This objection is not well founded. The bill shows that the money, after the decision of the Circuit Court, from which the writ of error was taken, was, by agreement between all the parties interested, left in the hands of Wynne, to be put out at interest, and after the termination of the litigation respecting it, to be paid over by Wynne to the parties adjudged to be entitled to it. The relation, therefore, of a direct trust was created between Wynne and the parties in interest, which would debar him of the benefit of the Statute of Limitations, and would preclude Gay, who had received the trust funds with notice, and under an agreement to refund them if required after the termination of the controversy, from setting up the statute.
Again, it is objected that the complainant’s remedy was ample at law, by action or motion against the sheriff and his sureties at law. But this ground of objection is not well taken, for several reasons. First, the complainants are not entitled jointly, but their claims are several. The sum to which each is entitled is unascer-tained and unfixed, depending upon a pro rata distribution of the fund among them, and requiring an account to be taken, upon the principle settled by this court in its decision of the case. A joint action could not be maintained in all their names, because their interests are several. And a separate action would not be an adequate remedy, because the portion to which each of the numerous complainants is entitled, depends upon a calculation to be made of the claims and proportions of the other parties, which could
The decree overruling the demurrer, is therefore affirmed, and the cause remanded, and the defendants required to answer, within sixty days.