State Fire Insurance v. Morrison

95 Miss. 639 | Miss. | 1909

Mates, J.,

delivered the opinion of the judges denying the application.

Daniel J. Morrison filed a bill in the chancery court of Hinds county against the -State Fire-Insurance Company and others. For the purpose of deciding the question presented to the court by this application, ;t is unnecessary to recite the facts contained in the bill. A demurrer to the bill was filed by the defendants and overruled by the chancellor. The chancellor was applied to for an appeal, under section 34 of the Code of 1906, which application was refused, whereupon an application is made to this court, under section 4908 of the Code of 1906, for the purpose of having the chancellor’s action in denying the appeal reviewed.

It is urged that the appeal is a matter of right under section 34 of the Code of 1906. Unless the appeal is a matter of right, an examination of the record convinces us that the decree of the chancellor overruling the demurrer .was not such an abuse of discretion as would warrant this court in granting an appeal over his refusal. Section 34 of the Code of 1906 provides that '‘when a demurrer shall be overruled in a chancery court, or by the chancellor in vacation, the party demurring may appeal to the supreme court, without being first compelled to answer; and, if the decree be affirmed, the cause shall be remanded, to be proceeded with according to the practice of the court; but such appeal must be applied for, and bond given, within ten days after the demurrer is overruled, if in term time, and if decided in vacation within thirty days after the decree is filed in the proper office. Such appeal must be allowed by the court or the chancellor; but the appeal bond may be approved by the court or chancellor, or the clerk.”

It is seen from this section that a different mode of appeal is prescribed where the appeal is sought to be taken from a decree arising under section 34 from that provided for where the appeal is a general appeal under section 41. Where the appeal is taken under section 41, the clerk of the court where the judgment or decree was rendered is authorized to grant the appeal, ■except in such cases as the law provides that the appeal shall be granted by the court or chancellor. There could be no reason for making it imperative that an appeal under section 34 shall be by tbe court or chancellor, unless it be that this was done in order that the chancellor might determine whether or not such appeal should be granted. It is our view of this statute that the very reason why it denies the clerk the power to grant an appeal in cases arising under it, and requires that such appeal shall only be granted by the court or chancellor, was because it was the intention of the legislature to vest the court or chancellor with the discretion to adjudge whether or not such appeal should be allowed.

The cases cited b'y counsel --- •’king the application for appeal have no application to the si. ate as it now exists. The decisions referred to were made before the change in the law to be found at the close of section 34.

The petition for appeal is disallowed.