McMahan v. Adult Membership Boards

145 So. 2d 692 | Miss. | 1962

McGehee, C. J.

This appeal is from the Circuit Court of Forrest County, Mississippi, wherein a judgment was rendered in a. suit for a prohibitory injunction brought by the appellees, The Adult Membership Boards of the Phi Kappa, Dusty and Debs Clubs, being High School Sororities and Fraternities of the City of Hattiesburg, Mississippi, against the appellants, B. J. McMahan, et al., Trustees of the Plattiesburg Municipal Separate School District, and The Superintendents of Education of Three High Schools, Respectively, in the City of Hattiesburg, Mississippi. The judgment was rendered on September 21, 1961, at a time when the Forrest County Circuit Court was in vacation, and the judgment rendered transferred the cause under Sec. 1657, Miss. Code of 1942, to the chancery court and directed the clerk of the said court to issue the injunction prayed for. A timely motion to set aside this judgment and a demurrer were filed by appellants, after the order of transfer had been entered. This motion to set aside the judgment of transfer, as well as the demurrer thereafter filed, were overruled by the circuit judge. There is no petition, declaration or bill of complaint in the record on the appeal of this cause, but it is alleged by the appellees that there was such a petition before the court for the prohibitory injunction at the time the court ordered the cause transferred to the chancery court. On January 27, 1962, during the January Term of the Circuit Court of Forrest County, Mississippi, the motion and demurrer of the appellants were stricken, and it is from this judgment that the appellants prosecute this appeal.

We do not think that the appeal will lie for the reasons (1) that no final judgment was rendered in the case, and (2) an interlocutory appeal cannot be granted by the circuit court, and none was granted in the instant case.

We are therefore of the opinion that we should of our own motion dismiss this appeal and proceed to a determination of the fact as to whether or not the interlocutory appeal granted by the chancery court should be entertained.

The appeal in the above-numbered cause is therefore dismissed for the reasons hereinbefore stated.

Appeal dismissed.

Gillespie, McElroy, Rodgers and Jones, JJ., concur.

ON SUGGESTION OF ERROR

McGehee, C. J.

The Court was correct in dismissing the appeal in this case to which a suggestion of error has been filed. The original opinion, however, left the case apparently pending in the Circuit Court of Forrest County. This was not the intention.

The Judge of the Circuit Court of Forrest County was presented with a petition for an injunction which he was authorized to consider under Sec. 1657, Code of 1942. The judge signed the order or fiat directing the Chancery Clerk of Forrest County to issue the injunction, and the petition and the fiat were delivered to the Chancery Clerk. However, their case had been entered on the docket of the Circuit Court and the order or fiat had been recorded on the minutes of that court. The appellants filed a demurrer in the Circuit Court and also filed a motion to strike. The Circuit Court overruled the demurrer and the motion to strike but later' entered an order striking the demurrer and the motion from the files on the ground that it was erroneously entered on the docket of the Circuit Court. The filing of the petition and the order and the docketing of the case in the Circuit Court was erroneous, useless, needless and without authority. We do not think that it conferred any jurisdiction upon the Circuit Court, and all that was done there was a nullity. Consequently, there was nothing from which to appeal to this Court.

The suggestion of error is overruled and the appeal as heretofore ordered is dismissed.

Suggestion of error overruled and appeal dismissed.

Gillespie, McElroy, Rodgers and Jones, JJ., concur.