Opinion
No. 35841.
May 14, 1945.
1. APPEAL AND ERROR.
A guardian was not entitled to appeal from order which he had petitioned court to make, and which therefore was by his consent (Code 1942, sec. 1147).
2. APPEAL AND ERROR.
Persons who were not parties to proceedings sought to be reviewed were not entitled to appeal.
APPEAL from chancery court of Jasper county, HON. GEO. B. NEVILLE, Chancellor.
W.E. Morse, of Jackson, for appellants.
The motion to reinstate the appeal should be sustained.
Avent v. Markette, 109 Miss. 835, 69 So. 705; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Dorsey v. Murphy, 188 Miss. 291, 194 So. 603; Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729; Lloyd's Estate v. Mullen Tractor Equipment Co., 192 Miss. 62, 4 So.2d 282; Jones v. Cashin, 133 Miss. 585, 98 So. 98; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; Merrill Eng. Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So.2d 666; Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; Sibley v. Sibley, 96 Miss. 134, 50 So. 552; Stokely v. State, 149 Miss. 435, 115 So. 563; Thompson v. Wilson, 172 Miss. 766, 160 So. 388, 161 So. 153; Union Chevrolet Co. v. Arrington, 162 Miss. 816, 138 So. 593; Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196; Yazoo M.V.R. Co. v. Dampeer, 108 Miss. 650, 67 So. 150; Code of 1942, Secs. 415, 419, 422, 607, 1147, 1151, 1155, 1159, 1160, 1384, 1387, 1389, 1636, 1639; Griffith's Mississippi Chancery Practice, Secs. 45, 360, 530, 533; Restatement Real Property, Secs. 16, 23; 5 Thompson on Real Property, Sec. 2861.
Wells, Wells Newman, of Jackson, for appellee.
This appeal is attempted to be taken by the next of kin of the non compos mentis, who have no vested right in the matter, and the guardian is joined in the appeal at a time when he is represented by competent attorneys who are not participating in the appeal.
This Court has no jurisdiction of this appeal. There is no controversy between any interested parties presented in this appeal. The only and proper way for this decree to be attacked is by direct attack by a party in interest, and the guardian cannot appeal from a decree entered at his instance and request.
On a former day we dismissed the appeal herein without an opinion, first, as to the guardian because it is an attempt to appeal from an order which he, as guardian, petitioned the court to make, and which therefore was by his consent, see Sec. 1147, Code 1942; 4 C.J.S. Appeal and Error, Sec. 213, pp. 404, 405; and, second, as to the other proposed appellants, because they were not parties to the proceedings sought to be reviewed. Farmers Merchants Bank v. Rushing, 175 Miss. 826, 831, 167 So. 784. For the same reasons, we decline to reinstate. It may be that those now complaining may have some recourse, as to which we express no opinion, but it is not by appeal.
Motion overruled.