Opinion
No. 35842.
May 14, 1945.
1. EQUITY.
A decree pro confesso, entered against nonresident defendants summoned to answer by publication but failing to do so, loses its finality and cause in which it was rendered again becomes a pending cause when defendants within two years after its rendition apply to court by which judgment was rendered for a rehearing (Code 1942, secs. 1391, 1392).
2. APPEAL ANE ERROR.
Nonresident defendants summoned to answer by publication against whom decree pro confesso was entered upon their failure to answer, though entitled to apply to trial court for a rehearing, also had right to treat decree as final and appeal therefrom in order to avoid danger of sale of property to a purchaser in good faith pursuant to decree (Code 1942, secs. 1147, 1391, 1392).
APPEAL from chancery court of Perry county, HON. D.M. RUSSELL, Chancellor.
E.C. Fishel, of Hattiesburg, for appellee, on motion to dismiss appeal.
The cause is a pending matter as to these nonresident appellants in the chancery court of Perry County, Mississippi.
Cole v. Miller, 32 Miss. 89; Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So.2d 694; Code of 1942, Secs. 1391, 1392; Griffith's Mississippi Chancery Practice, p. 753, Sec. 648.
This Court does not have jurisdiction of said cause until same is finally determined by the Chancery court of Perry County, Mississippi.
Cole v. Miller, supra; Code of 1942, Sec. 1147.
The appellant has not exhausted his remedy in the trial court and the appeal is not necessary to get him the relief sought.
American Cotton Oil Co. v. LaValle House, 148 Miss. 259, 114 So. 321; Hicks v. Murphy, Walk. (1 Miss.) 66; Barbee v. Pannill, 6 Gratt (47 Va.) 442; Platt v. Howland, 10 Leigh (37 Va.) 507; Foland v. Brownfield (W. Va.), 80 S.E. 359; Meadows v. Justice, 6 W. Va. 198; Code of 1942, Secs. 1391, 1392; 3 C.J. 334, Sec. 67.
J.R. Buchanan, of Laurel, for appellants, on motion to dismiss appeal.
The decree appealed from was "final" for the purpose of appeal. The mere fact that the appellants had the statutory right to file a bill of review within two years from the rendition of the decree did not prevent the decree from being "final" for purposes of appeal.
Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642; Edwards v. Edwards, 193 Miss. 889, 11 So.2d 450; Code of 1942, Secs. 1391, 1392; 54 C.J. 757, note 84; 4 C.J.S. 94, 95, 97-98, 102, Sec. 32; 28 C.J.S. 1064, 1085, Secs. 3, 12.
The question that the bill of complaint did not state a cause of action can be raised for the first time on appeal.
Paine v. Newton, 186 Miss. 844, 192 So. 310; Paine v. Mikell, 187 Miss. 125, 192 So. 15; Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 156, 93 So. 673; Campbell v. Wilson, 194 Miss. 746, 13 So.2d 624.
The appellate court has jurisdiction to determine the question whether upon the record before the court there is or is not a valid final decree, and in the exercise of this jurisdiction, on finding that there is no valid final decree, the proper order is not to dismiss the appeal, but a reversal and remand so that the supposed decree may be vacated upon the record of the case.
Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901.
The appellants are nonresidents of the state and the appellee sued them in the court below. They were summoned to answer by publication, but failed so to do, and a decree pro confesso was taken against them, followed by a final decree, from which this appeal is taken.
The appellee has filed a motion to dismiss the appeal on two grounds, which are really one: First, that the decree is not final and therefore no appeal lies therefrom, and second, "that the appellant has not exhausted his remedy in the trial court and the appeal is not necessary to get him the relief sought." Sections 1391, 1392, Code of 1942, are relied on by the appellee in support of this motion.
Under these sections, a decree of this character is final for all purposes, including the issuance of process for its execution, unless the defendant applies to the court by which it was rendered for a rehearing within two years after its rendition. It loses its finality and the cause in which it was rendered again becomes a pending cause when, but not until, such an application is made. Belcher v. Wilkerson, 54 Miss. 677; Griffith's Mississippi Chancery Practice, Section 648. It is true that the appellants have the right to apply to the court below for a rehearing of the case, but they also have the right to treat the decree as final and to appeal therefrom under Section 1147, Code of 1942. Had they pursued the first course, they would have been met with the provision of Section 1392 of the Code that "the title to property sold to a purchaser, in good faith, in pursuance of a decree, shall not be affected by any such rehearing." This danger they have the right to avoid by an appeal.
Motion overruled.