124 So. 341 | Miss. | 1929
In this state, and in practically all the states, no appeal is allowed to the supreme court from judgments at law, unless the judgment is a final judgment; and the same rule is observed in nearly all the states in respect to decrees in chancery. We believe the only exceptions are in those few states which have borrowed from Virginia, said to be the originator of the exception, a statute providing for the allowance of an appeal from an interlocutory *723 decree in equity, when the interlocutory decree is one "adjudicating the principles of the cause." This exceptional statute found its way into our state in the original act creating the court of chancery, and is section 37 of that act, passed November 27, 1821 (Poindexter's Code 1824, p. 93). It is a part of the judicial history of this state that the act last mentioned was drawn by Governor George Poindexter, a native of Virginia, and who in the first official Code of this state, known as Poindexter's Code, brought numerous features of the Virginia law into our statutes. In our earlier statutes, and up to the statute of 1924, the expression used has been "in order to settle the principles of the cause," but the meaning is substantially the same.
Both Virginia and West Virginia have construed the statute as meaning that an appeal may not be allowed under it, when only a part of the principles of the case are adjudged by the decree, or would be settled by the appeal. In Wood v. Harmison,
It will be observed that the statute was sought to be made available in those states when only a part of a case, or a part of the principles involved, would be settled, and the experience in this state has been of a like kind. In Ward v. Whitfield, 64 Miss. at page 761, 2 So. 493, 495, our court said: "We would . . . again admonish chancellors that appeals from interlocutory decrees ought not to be granted unless the principles of the case can be settled upon such appeals. In the progress of chancery proceedings very many interlocutory decrees are made, and it is but natural that parties should desire to avail themselves of every opportunity afforded for appeals. . . . It is not the purpose of the statute to afford appeals to this court merely because litigants are dissatisfied with such interlocutory decrees. Ordinarily the interests of all parties will be advanced, and justice more speedily and economically administered, by proceeding to final decree. Unless the evil of frequent appeals is removed by the action of the lower courts, this court will apply the corrective by dismissing ex mero motu appeals improvidently granted."
Evidently but little attention was paid to that admonition of the court, or, if any, it was soon forgotten, although in the meantime in such cases as Ames v. Williams,
The legislation, the need of which was so earnestly pointed out by the court, finally came, although much delayed, and by section 17, chapter 151, Laws 1924, the statute was rewritten, so as to allow appeals under the clause in question only when so to do would "settle all the controlling principles involved in the cause." This language is so plain that no elaboration upon it could make it plainer; nevertheless, cases continue to come here upon piecemeal appeals granted in violation of it, and the case here before us is merely another in the very teeth of the statute. It is disclosed by the pleadings, and was admitted in the argument upon challenge by the court, that the appeal here would settle only a part of the principles and moreover applies only to some of the parties; the other parties must wait, while those solely involved in this particular appeal would litigate on the appeal their parcel of the case.
But it was said in the argument that the point has not been raised by the parties. This would be wholly immaterial, even if all the parties to the case were parties to this appeal, rather than some of them only, as is the situation here; for it is elementary that this court has no jurisdiction of appeals, except within and strictly within, the terms of the statutes so allowing, and that a want of jurisdiction may be raised by this court, not *726 merely as a privilege, but that it must do so as a duty. We repeat what was said forty years ago in Ward v. Whitfield, supra, that, when these appeals are granted in contravention of the statute, we will apply the corrective by dismissing them ex mero motu. To do otherwise would not only make us parties to the violation of the statute, but would place us in the attitude of delivering opinions purely advisory in their effect — opinions which, for want of jurisdiction to render them, would have no binding force upon the parties, upon the trial court, or upon us.
Appeal dismissed.