Nesbit v. Rodewald

| Miss. | May 15, 1870

Simrall, J.:

This cause was submitted on motion of appellees to dismiss.

1st. Because the appeal is from an interlocutory decree of the chancery court, and was not granted by the judge or court; and

2d. Because the appeal was granted by the clerk.

The appellees on the 16th June, A. D. 1869, filed a supplemental bill against Nesbit and others by the leave of the court. On the same day the appellant, Nesbit, had filed a demurrer to the supplemental bill. On the 17th of the same month, the court overruled the demurrer with leave to Nesbit to answer within sixty days. On the 30th of August of same year, Nesbit applied by petition to the clerk of the court for an appeal, suggesting that the chancellor had committed error in permitting the complainants to file a supplemental bill against their 'objection, and also in overruling their demurrer to the bill. The clerk of the chancery court granted the appeal, took bond, etc.

The practice in England has been in theory, at least, to allow an unrestricted right of appeal from any judgment, decree, or order of the court of chancery. The right was formerly as broad in New York, yet there is a large, a very large, class of orders, resting in the discretion of the chancellor, to grant or not. It would seem to be strange, to refer a discretion vested in one court, to the review and correction of another; and therefore, the effort was made in England, and in the appellate court of New York, to except out of this right of appeal and review, such interlocutory orders as this, indeed all which lie in discretion. The difficulty of laying down any general rule, and the embarrassments to the courts for want of it, is very clearly pointed out by Justice Marcy, in the cause of Beach v. Fulton Bank, 2 Wen. Rep., 230. In England an appeal was not suspensive of further proceedings in the cause ; a different practice, would •almost have amounted to a denial of justice, by protracted •and often repeated postponements and delays pending the .appeal. This subject has always been controlled and regulated by statute in this state.

By the early statutes there were several modes of bringing a case from the chancery court into this court by appeal. From a final decree, appeal could be taken in term time, in open court.

2d. The party aggrieved, if he failed to take an appeal “ at the time decree was pronounced,” could, within one month thereafter, file a transcript of the record with the clerk of the supreme court, accompanied with a petition signed by the appellant, or some counsel of the court suggesting error, accompanied with bond, etc.

3d. The supreme court or some judge thereof in vacation, shall, for good cause shown, allow a petition of appeal, and if necessary, order a supersedeas at any time within three years after date of decree, the applicant for appeal complying with the terms which the court or judge may prescribe.

The act of 1837, it may be remarked, authorized any party to any judgment or decree rendered in any court in this state, to apply by petition, to the clerk of the court where the judgment was rendered for writ of error and supersedeas, which the clerk was bound to allow if the terms of the act were complied with. This act embraces both chancery and probate decrees, as well as judgments at law, and for the first time allowed the writ of error to remove into this court a chancery decree. The only statute prior to February, 1844, permitting appeals from interlocutory orders and decrees, isthatof 27th November,1821- Hutch. Code, section 37, p.759. Allowing an appeal from an interlocutory order, either by the court or chancellor in vacation, at any time before final decree in the same manner and on same conditions as if final decree had been made; provided, such interlocutory decree orders money to be paid, or the possession or title of property to be changed, or if the court or chancellor shall think the appeal proper, to settle the principles of the cause, or to avoid expense or delay. If the court or chancellor refuse the appeal, then the supreme court or any judge thereof, on petition, may award the same, etc.

Next comes the act of 24th February, 1844, permitting an appeal from an order overruling a demurrer to the bill without the demurrant being first compelled to answer. If the judgment overruling the demurrer be affirmed, the cause shall be remanded, to be proceeded in according to the practice of the court. Hutch. Code, 781. Thus stood the law on this subject until the revision of 1857. Art. 101 of Rev. Code, p. 555, is the act of 1844, just quoted.

Ordinarily, appeals must be applied for to, and granted by, the court whose proceedings are sought to be reviewed. Aside from statute, in no state of case could the clerk allow either appeal or writ of error. As to the time when the appeal must be taken under art. 101, of the Code, the words of the statute are, “ when the demurrer is overruled.” The appeal from such an order is suspensive. It may be allowed before the defendant is required to’ answer. If the chancellor is sustained by the appellate court, then the cause is remanded, to be proceeded in according to the practice of the court. There is no discretion to grant or disallow. Though the chancellor may think the demurrer to be frivolous, the defendant is entitled to his appeal. Demurrer to the bill puts the complainant’s case, as he states it, to the test, whether he is entitled to the discovery and relief asked for, or to any relief whatever. And it was doubtless, in this aspect of it, that the legislature permitted the appeal before final decree. Art. 102 of the Code, which immediately follows, is a continuation, with slight change, of the statute of 1821, already quoted. This allows an appeal from a certain class of interlocutory orders, such as effect a change of the title or the possession of property, or the payment of money, etc., which may be granted by the court, or the judge in vacation, if applied for in twenty days after the date of the decree complained of, and the court or judge shall determine whether the appeal shall operate as a supersedeas or not. Article 104 prescribes the bond for costs to be approved by the clerk on an appeal overruling a demurrer, or other interlocutory orders when the court or judge shall not allow a supersedeas.” This article seems especially, and perhaps exclusively, to contemplate the appeal from the description of orders and decrees mentioned in article 102. The order overruling a demurrer to a bill, is not named, but a liberal reading of the article would include it in these words, “ or when the judge may think proper, in order to settle the principles of the cause,” or to avoid expense or delay. Perhaps the demurrer, more than any other pleading in a suit, does bring into judgment the principles of the case, and a decision upon it may avoid expense and delay. If the court or chancellor believes that the demurrer is of this character, he may, and ought to grant the appeal, if he overrules it, if applied for in proper time. If, however, it be merely for delay, or for some matter of form, which can be cured by amendment, as where the complainant defectively states a good case, then he ought not to allow it.

If this appeal cannot be sustained under some one of these provisions of law, then the case is improperly in this court, and we have no jurisdiction to consider of the order complained of. We have seen that it was not properly taken under the art., 101, because not prayed and allowed by the court when the order was made. It is not taken under art. 102, because the application was not presented to the court, or to the judge in vacation, nor allowed by the one or the other.

There was exception taken by appellants, to the order of the court, permitting the complainants to file the supplemental bill. It is manifest this is not such an interlocutory order as can be appealed from. If error can be predicated of it at all, it can only be when the cause is brought here, from the final decree, which opens the whole case in this court for review.

In Stebbins v. Niles, 13 S. & M., 307, speaking of judgments and decrees, as used in .these statutes, the court say, the terms “judgments ” and “ decrees” mean final disposition of a cause, unless the meaning be restricted by appropriate technical language, and so we must have understood the legislature to have used them.

Brown v. Troop, 33 Miss. Rep., 37, sustains the construction we have put on the statutes. In that case it would appear that the' appeal was granted by the court, when the demurrer was overruled. The court add, “ the act of 1844, covers every case in which the demurrer is overruled, besides the statute of 1822, covers the case, if by the appeal the merits of the controversy may be settled. Let the motion be sustained and the appeal dismissed.