State v. Woodruff

83 Miss. 107 | Miss. | 1903

Campbell, Special Judge,

delivered the opinion of the court on the motion.^*

The right to appeal from an interlocutory decree, given by § 34 of the Code of 1892, is deemed so valuable as to be safeguarded by power in the judges of the supreme court severally to grant such appeal when refused by the chancellor. Code 1892, § 4344. Whenever, at any stage in a case, an interlocutory decree-of the kind mentioned in section 34 is made by the chancellor, he may grant an appeal, and the fact that the case has been before the supreme court and remanded is not a bar to such appeal. The chancellor and this court may be relied on to prevent an abuse of the right by its use merely for delay or to put before the court questions already settled. The motion to dismiss the case as to the state and its officers involved the question whether the liability of the-state to be sued, as it has been in this suit, has been settled beyond controversy by what has previously occurred in it. This is affirmed by the opponents of the motion. Whether that be true or not is the very matter involved in the motion, and presented a question for the chancellor to decide. He decided it, and' granted an appeal from his decision, and properly; as we think. We confine ourselves to the narrow question whether an appeal lay, and avoid any intimation or implication as to the merits of the question involved in the appeal.

Motion to dismiss the appeal is denied.

* Judges Calhoon and Whitfield recused themselves in this case, and J. A. P. Campbell and C. H. Alexander, Esqrs., members of the supreme court bar, were appointed special iudges in their stead.