After divers pleadings and sundry procedures, this cause was arrayed in the Chancery Court of Simpson County, Mississippi, by Mrs. J. B. Bishop and the other heirs of J. H. Thurman against Charles B. Slater to recover $3,754.50 for the alleged wrongful cutting and removal of timber from their lands. It is a suit by the remaindermen, aрpellees here, complainants below, to recover damages for timber cut by the appellant, defendant below, upon life estate lands situated in Simpson County, Mississippi, by authority of the life tenant only. This timber was cut and removed by the appellant solely for commercial purposes. The life tenant, J. H. Thurman, was the father of the appellees, and the remaindermen, comрlainants below, were his children and certain grandchildren.
In the trial of the case, when the appellees had completеd their proof and had rested, the appellant made a motion to exclude the testimony offered on the part of the аppellees and to dismiss with prejudice the appellees’ bill of complaint, for the reason that the appelleеs had wholly failed to establish their case by meeting the burden of proof to show, (1) that the timber was cut from the 160 acres in which J. H. Thurman had only а life estate; (2) that the value thereof was $3,754.50; and (3) that the timber was removed during the years 1956, 1957 and 1958.
The chancellor overruled the motion to dismiss, but sustained appellant’s oral motion for appeal and permitted the appellant to take an interlocutory appeal from the decision on the motion to dismiss. Thus the
Mississippi Code Annotated section 1148 (1956) is controlling in the determination of this question. It provides as follows:
“An appeal may in sound discretion be granted by the chancellor in term time, or in vacation, from any interloсutory order or decree whereby money is required to be paid, or the possession of property changed, or when having sustаined or overruled a demurrer or motion he may think an appeal proper in order to settle all the controlling' principles involved in the cause, or in exceptional cases to avoid express expense and delay; but such appeаl must be applied for and bond given within thirty days after the order or decree appealed from is filed in the proper officе whether the decision be in term time or in vacation. Such appeal if allowed must be allowed by the court or chancellor, and he shall determine whether the appeal shall operate as a supersedeas or not, but the appeal bond may be approved by the court or chancellor, or the clerk; but in case such an appeal is refused by the chancellor it may nevertheless be allowed by a judge of the Supreme Court.”
The secondary questions are thus presented: Will this appeal settle all the controlling principles involved in the cause, or is this appeal exceptional in that it will avoid expеnse and delay? It is upon these two requirements alone that the appeal could have been allowed. If either of these secondary questions can be correctly answered in the affirmative, then the appeal should have been granted. If answеrable in the negative, then an appeal will not lie. Though the right of the appellant to appeal is not contested by appellees, it is nevertheless the duty of this Court to raise the question which involves jurisdiction, on its own motion, of'wheth
In Atwell Transfer Company v. Johnson,
It is pointed out by former Justice Virgil A. Griffith in his remarkаble “Mississippi Chancery Practice” (1925), as follows:
“Section 682. Interlocutory appeals generally not favored.- — The allowance of useless and improvident interlocutory appeals has been condemned, therefore, both by judicial decision and by the recent trend of legislation. The opinion has thus become matured, that ordinarily the interests of all parties will he advanced* and justice more speedily and economically administered by proceeding to final decree, and that no interlocutоry appeal should ever he granted except in a case found clearly proper therefor, upon the exerсise of great care and caution. No such appeal should he allowed for the purpose of settling the principlеs of the case except (1) where some distinctly good and admissible purpose will be accomplished in settling the principles before proceeding to final hearing; and (2) where the principles to be settled cover the whole case, so that whеn thus settled there will remain to be done nothing except to ascertain and apply the facts to those principles. ...”
Cited under this section are Yazoo & M. V. R. R. v. James,
It cannot be said that this is an exceptional case in which an appeаl should have been granted in order to avoid expense and delay, or that a decision of the question presented on appeal will settle all the controlling principles involved in the cause. The chancellor evidently based his decision on the ground that a decision on the motion which was overruled and upon which the interlocutory appeal was allowed, would settle аll of the controlling principles involved in the case at bar. This the appeal fails to do, and for this reason the appеal was improvidentially granted and this appeal is, for said reason, dismissed. Atwell Transfer Co. v. Johnson, supra; Breland v. Lemastus,
Appeal dismissed.