64 Miss. 754 | Miss. | 1887
delivered the opinion of the court.
Tiie appellee has a judgment at law against appellant on which execution has been issued and returned nulla bona.
The appellant and her daughter, May, obtained a joint decree against one O’Conner which has been executed, and there is in the hands of the sheriff a considerable sum of money made thereunder.
The appellee, for the purpose of subjecting this fund to the payment of her judgment, exhibited her bill against .Mrs. Ward and the sheriff, and obtained an injunction restraining the officer from paying over the money until her claim should be determined. To this bill Miss Ward was not a party, nor was there any averment contained in it that Mrs. Ward was insolvent, or that there had been a return of nulla bona to the execution. On motion the injunction was dissolved, and from the decree of dissolution an appeal was taken to this court, when the decree was affirmed.
The complainant thereupon presented to one of the judges of this court her bill, styled an amended and supplemental bill, against Mrs. Ward and her daughter, May, charging insolvency of Mrs. Ward, and that the execution issued against her had been returned nulla bona before the filing of the original bill. There was no
The defendant, Anne Ward, moved the court to strike from the files the second bill, because it was an amended bill, filed without leave of court first had, and this being denied, she moved to strike out the words “ amended and supplemental ” in the stating portion of the bill. This was also refused; whereupon she moved the court to finally dismiss the original bill, which motion was also denied. In this condition of the cause the defendant prayed and obtained an appeal in order that the principles of the case might be settled by this court.
The defendant then moved the court to dissolve the injunction, which was overruled, and from this decree she also prayed and obtained another appeal.
These appeals we have in two distinct records, but for the purpose of this examination we will consider them together.
We dispose of the errors assigned to the action of the lower court by the simple statement that what was done by the Chancellor, (except the granting of these appeals), meets our approval.
The amended bill was very properly retained. The fact that no precedent leave had been obtained did not preclude the Chancellor from afterward permitting it to be filed, and his refusal to strike it out was tantamount to leave to file it. It was proper to refuse to dismiss the bill originally filed. That and the amended bill disclosed one and the same purpose, and it would have been unjust to complainant, who is but seeking to compel an unwilling debtor to apply her estate to the payment of a just debt, to subject her to the annoyance and expense of defending an action upon her first injunction bond. It was not necessary for the sheriff to retain in his hands the execution against Mrs. Ward until the return-day. If there was no property subject to execution while it remained in his hands, there exists no presumption that the condition of the debtor would be changed before the return-day. A creditor is not bound to desist from an effort to subject the equitable assets of his debtor, in the hope or expectation that by some chance he may thereafter acquire legal assets. ,
We would have disposed of these appeals with a simple order of affirmance but for the opportunity afforded by them to again admonish chancellors, that appeals from interlocutory decrees ought not to be granted unless the principles of the case can be settled upon such appeals. In the progress of chancery proceedings very many interlocutory decrees are made, and it is but natural that parties should desire to avail themselves of every opportunity afforded for appeals. But the statute authorizing appeals from such decrees can have application only when the principles governing the cause may be settled by the appeal, or where the chancellor doubts the correctness of his conclusion, and costs and delay may be avoided by the appeal. It is not the purpose of the statute to afford appeals to this court merely because litigants are dissatisfied with such interlocutory decrees; ordinarily, the interests of all parties will be advanced and justice more speedily and economically administered by proceeding to final decree.
Unless the evil of frequent appeals is removed by the action of the lower courts, this court will apply the corrective by dismissing ex mero motu appeals improvidently granted.
Affirmed.