95 So. 305 | Miss. | 1923
delivered the opinion of the court.
Tlie appellee sued the appellant at law on a promissory note for five thousand dollars executed and delivered by her to him, whereupon she sued out an injunction against him restraining him from further prosecuting tlie action at law, and praying for an accounting from him as to his management of a business enterprise in which they were jointly interested, and as a part of which the promissory note in question was executed.
The bill alleges, among other things: That the appellant is the owner of a plantation in Tallahatchie and Quit-man counties, and that the appellee farmed the plantation during the years 1919 and 1920 under an agreement with her by which he was to take charge of the land “together Avith the mules and implements thereon, and that the two Avere to make a crop in partnership, to share profits and losses equally. They were to pay the expenses of making the crops, Avhich Avere to be deducted from the proceeds
The appellee answered this bill of complaint, denying that the agreement betAveen him and the appellant Avas as set forth therein, but that it Avas that the appellee should "manage the plantation, the appellant to pay all of the expenses of making the crops, and that the appellee should receive one-half of the net profits thereof as compensation for his services. The answer further alleges that no profits were made, but, on the contrary, the proceeds of the crop were insufficient to pay the -expenses incurred in making them.
The appellee filed a motion in vacation to dissolve the temporary injunction that had been granted, and the cause was then heard on the oral testimony of witnesses. The agreement betAveen the appellant and the appellee under which the plantation was farmed Avas oral, and the evidence introduced by the appellant sustained the allegation in her bill relative thereto, except that, Avhen the agreement Avas made, the question of losses was not specifically mentioned. The evidence of the appellee as to this agreement was in accord with the allegations of his answer. On this evidence the chancellor dissolved the injunction, and refused the appellant an appeal therefrom to this court to settle the principles of the case, whereupon such an ap
It is immaterial whether the contention of the appellant or of the appellee as to the agreement under which the plantation was farmed is correct, because in either event the appellant is entitled to an accounting from the appellee and to a credit on the promissory note in question of any amount that the appellee may be due her as her share of the profits, if any, of the business. Moreover, the evidence qn the motion to dissolve the injunction was in' conflict as to what the agreement betAveen the parties was, AAdiich conflict can only be determined Avhen the cause is tried on the merits.
When an appeal has been granted to settle the principles of a case the court from which the appeal is taken is without poAver to proceed further with the trial theréof until the appeal has been disposed of. To hold othenvise would simply nullify the statutes granting the right to such an appeal. The decree rendered on the preliminary motion and that on its merits will both be reversed, and the cause remanded.
Reversed and remanded.