Opinion
No. 42549.
November 12, 1962.
1. Appeal — supersedeas — improvidently granted.
Where reviewing court had twice found that defendant's demurrer had been erroneously sustained and that plaintiffs would be entitled to injunction prayed for, if allegations of bill of complaint were established, and where defendant admitted, on remand, every material allegation of the bill of complaint, grant to defendant of an appeal with supersedeas was improvident and would be dissolved and vacated.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Hinds County; W.T. HORTON, Chancellor.
Suit by complainants, Campbell Sixty-Six Express, Inc., and others, against the defendant, J. G. Express, Inc., to enjoin and restrain defendant: (1) From transporting any shipment of freight received at Jackson, Mississippi from a shipping or connecting carrier and delivering it in Grenada, Mississippi to a consignee or connecting carrier; (2) from transporting any shipment of freight received at Grenada, Mississippi from a shipper or connecting carrier and delivering it in Jackson, Mississippi to a consignee or connecting carrier; and (3) from transporting any shipment of freight received in any point on U.S. Highway 51 from a shipper or connecting carrier and delivering it at any other point on U.S. Highway 51 to a consignee or connecting carrier. From a decree for complainants, defendant appealed with supersedeas. On motion to dissolve and vacate the supersedeas, motion sustained. Affirmed per curiam on the merits.
Lee B. Agnew, W.A. Busby, Jr., Jackson, for appellant.
Butler, Snow, O'Mara, Stevens Cannada, Jackson; Louis I. Dailey, Wrape Hernly, Memphis, Tennessee; James Hill, John H. Doeringer, Chicago, Illinois, for appellees.
ON MOTION TO DISSOLVE AND VACATE SUPERSEDEAS.
An appeal with supersedeas in the sum of $2,500 was granted in the above styled cause on August 10, 1962, by the Chancery Court of Hinds County, Mississippi. This cause is being heard on appeal on a motion of appellees to dissolve and vacate the supersedeas granted by the Chancery Court. This Court has twice found that the trial court was in error in sustaining the demurrer of the appellant to the bill of complaint filed by the appellees herein, Campbell Sixty-Six Express, Inc., Viking Freight Co., Inc., Gordon Transports, Inc., and Illinois Central R. Co., in the case styled T.H. Garrett, d/b/a Garrett Truck Line v. Delta Motor Line, Inc., 224 Miss. 559, 81 So.2d 245; and also in Campbell Sixty-Six Express, Inc., et al v. J. G. Express Co., Inc., 141 So.2d 720, not yet reported in State Reports, when the Court held that the allegations of the bill of complaint, if proved to be true, would entitle the complainants to the issuance of the injunction prayed for; and this Court reversed and remanded the cause to the chancery court for further proceedings. And it appearing from the record herein that upon the trial of the cause on remand the appellant, as defendant in said cause, admitted in its answer and the testimony of its president every material allegation of the bill of complaint, (Hn 1) we think that the appeal with supersedeas was improvidently granted and that the same should be dissolved and vacated. For a full understanding of the issue involved in the case see the two opinions in the cases above cited.
The motion to dissolve and vacate the appeal with supersedeas, granted by the chancery court on the appeal of this cause, is hereby sustained.
Motion sustained.
All Justices concur, except Arrington, J., who took no part.