Wolf v. Mississippi Valley Trust Co., 93 So. 581

93 So. 581 | Miss. | 1922

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree overruling a demurrer to an original bill, and was granted by the court below in order that the principles of the case might be settled. The appellants now request permission to dismiss the appeal, to which the appellees object. The appellants are husband and wife. The husband is indebted to the appellees, who seek to set aside a conveyance of land from the husband to the wife, and to subject the land to the payment of a debt due by the husband to the appellees. The reason assigned by the appellees for wishing to dismiss the appeal is that since it was taken the land involved has been sold under a deed of trust executed thereon by the appellants, and a supplemental bill has been filed by the appellees, setting up that fact, and praying for the cancellation of the deed to the purchaser under the foreclosure and the subjection of the land to the payment of the debt sought to be recovered in the original bill, and that consequently all of the questions now presented by the appellees’ pleadings for decision cannot be settled on the present appeal.

The right of an appellant to dismiss his appeal is not absolute, but can be exercised only by leave of the court, which leave will usually be granted unless some special reason be shown for refusing it. Sivley v. Sivley, 96 Miss. 134, 50 So. 552; United States v. Minnesota & N. W. R. Co., 18 How. 241, 15 L. Ed. 347. The decision of the questions here presented, if adverse to the appellees, will not relieve the court below of disposing of the questions presented by the appellees’ supplemental bill, and, if those questions should be decided by the court below adversely to the appellees, the questions presented by the original bill will become immaterial. Consequently the principles of the case may not be settled on this appeal, for which reason we think the appellants’ request for leave to dismiss it should be complied with, so that, in event it is called on to do so, the court may render a decision which will dispose of the principles involved in the whole case.

The motion will be sustained.