Opinion
No. 33016.
January 31, 1938.
APPEAL AND ERROR.
Under statutes governing appeals, order sustaining demurrer to replication in part and overruling it in part was not "final," and hence not appealable (Code 1930, section 13).
APPEAL from the circuit court of Winston county. HON. JOHN F. ALLEN, Judge.
Rodgers Prisock and R.W. Boydstun, all of Louisville, for appellee and cross-appellant.
The appeal in this case was improperly allowed.
This is not such a case that the trial court should have permitted appeal, but the trial court should have rendered judgment in favor of plaintiff below, appellee and cross-appellant here.
There are numerous authorities of this court supporting this contention, a number of such authorities being very late, but on account of the lengthy briefs herein filed and the great number of authorities already before this court we cite only Delta Pine Lbr. Co. v. Covington County, 87 Miss. 706, 40 So. 260.
The above cited case is very short, clear and to the point, and we think it has been followed so often by this court that the citation of additional authorities would only cause this court extra work reading same. E.M. Livingston, of Louisville, for appellants and cross-appellees.
Appellee brought this action against the appellants in the circuit court of Winston county and sought to recover judgment on six promissory notes, which were attached as exhibits to the declaration. Appellants plead the general issue, and also set up as a defense, by special plea, that all remedy to enforce the collection of the notes sued on was barred under the statute of limitations fixed by chapter 251, Laws of Mississippi of 1934, on the ground that the notes sued on constitute a series of notes of three or more, and were secured by a deed of trust which had been foreclosed prior to the passage of the said act of 1934, and that suit had not been filed within a year after the passage of said act.
A demurrer was interposed to this special plea, but no order was taken thereon. A replication to the special plea was then filed, whereupon the appellants, as defendants in the court below, filed a general demurrer to this replication to their special plea, and which demurrer was sustained to the extent that the court held that the act of 1934 applied to four of the notes sued on; and the demurrer was overruled to the extent that the court held that the act of 1934 did not apply to the other two notes, for the reason that they were not due within one year after the passage of the act. The order of the court goes no further than simply to sustain the demurrer in part and overrule it in part. It does not constitute a final judgment from which an appeal is allowable under our statutes. Code 1930, section 13. Hence, the court here has no jurissdiction of either the appeal or cross-appeal, and the same must be dismissed.
The case is controlled by State ex rel. Rice, Atty. Gen., v. Large, 171 Miss. 330, 157 So. 694.
Appeal dismissed.