Wynne v. Illinois Central Railroad

105 Miss. 786 | Miss. | 1914

Smith, C. J.,

delivered the opinion of- the court.

-'This-is a petition presented; by counsel for the;'-Illinois Central Railroad Company to tile judges ofthis court, at chambers, for the issuance of a writ of superse-deas. .

It appears from the petition that there is pending in the circuit court of Copiah county a cause wherein the Illinois Central Railroad Company is defendant, and L. B. Wynne, et ais., are plaintiffs; that on motion of plaintiffs an order has been entered by that court, under section 1003 of the Code, requiring the defendant to have certain of its books, papers, documents, etc., at Hazle-hurst Mississippi, on November 26, 1914, at ten o’clock, a. m., for the inspection of the plaintiffs, and to allow them a reasonable time within which to make this inspection, and such copies thereof as they may desire. The petition then alleged that this order was void, for the reason that the circuit judge exceeded his authority in making it, setting forth particularly wherein this authority had been exceeded, and prayed that this order be either superseded in whole, or modified in part.

The only power which any judge of the supreme court has to issue a writ of supersedeas is such as is conferred upon Mm by section 992 and 4908 of the Code neither of which cover the case here under consideration. If the petition be treated as having been presented to the court as such, and not to the judge thereof, it will be sufficient to say that the only power which has been conferred upon the court to issue a writ of the character here set forth, is power so to do, when necessary, in aid of its appellate jurisdiction. This petition is, in effect, nothing more than an indirect appeal from an order of the circuit court, for which no direct appeal has been provided by law.

Moreover the rule is that: “A proceeding in super-sedeas should be granted out of the court where the record upon which it is procured remains, or be returnable in the same court. It cannot be granted out of any court returnable in the same court, where the record upon which it is returnable is not there.’’ 37 Cyc. 600; 20 Ency. Pl. & Pr. 1276; Payne v. Thompson, 48 Ala. 536.

Petition denied.