Opinion
No. 42417.
October 22, 1962.
1. Courts — injunctions — power in vacation of Circuit Court to transfer cause to Chancery Court and direct its clerk to issue writ.
Circuit Court in vacation properly struck demurrer to petition seeking prohibitory injunction from files, and Circuit Court in transferring cause to Chancery Court acted in substantial compliance with statute. Sec. 1657, Code 1942.
2. Appeals — interlocutory appeals not favored.
Interlocutory appeals are not favored.
3. Appeal — interlocutory appeal dismissed by Supreme Court ex mero motu.
Supreme Court on its own motion would dismiss interlocutory appeal from order of Special Chancellor, where Supreme Court was of opinion that Circuit Court in vacation acted in substantial compliance with statute in transferring cause to Chancery Court, and assignment of error and briefs on behalf of appellants were devoted almost exclusively, if not entirely, to discussion of point as to whether Circuit Court had power to transfer cause to Chancery Court. Sec. 1657, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Forrest County; JOHN K. KEYES, Special Chancellor.
Suit was brought in the Circuit Court for a prohibitory injunction by plaintiffs, the Adult Membership Boards of the Phi Kappa, Dusty and Debs Clubs, being high school sororities and fraternities of the City of Hattiesburg, Mississippi, against the defendants, B.J. McMahan and others, Trustees of the Hattiesburg Municipal Separate School District, and the Superintendents of Education of three high schools, respectively, in the City of Hattiesburg, Mississippi. The Circuit Court in vacation transferred the cause to the Chancery Court and directed the clerk of the Chancery Court to issue the prohibitory writ of injunction. From a decree of the Chancery Court denying a motion to dissolve and a demurrer, an interlocutory appeal was taken. Appeal dismissed.
Sullivan Sullivan, Hattiesburg, for appellants.
I. At the time the writ of injunction was issued by the Chancery Clerk, there was nothing pending before him in Cause No. 21,104. Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582; J.J. Newman Lumber Co. v. Pace, 137 Miss. 504, 102 So. 570; Yazoo M.V.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; Sec. 506, Code 1906; Secs. 1228, 1523, Code 1942; 21 C.J.S., Courts, Sec. 167; 49 C.J.S., Judgments, Sec. 114; Griffith's Mississippi Chancery Practice, Secs. 446, 447, 448.
Lester Clark, R.A. Gray, Jr., Howard L. Patterson, Jr., Stone D. Barefield and Francis T. Zachary, Hattiesburg, for appellees.
I. Answer to Point One of appellants' brief. Griffin v. Maryland Casualty Co., 213 Miss. 624, 57 So.2d 486; Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 22 L.R.A. (NS) 983; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48; Robertson v. F. Goodman Dry Goods Co., 115 Miss. 221, 76 So. 149; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Williams v. Deposit Guaranty Bank Trust Co., 190 Miss. 685, 1 So.2d 486; Sees. 147, 157, Constitution 1890; Secs. 1262, 1657, Code 1942; 47 Am. Jur., Schools, Sec. 173 p. 426; Griffith's Mississippi Chancery Practice (2d ed.) Sec. 517.
In this cause a petition was filed in the Circuit Court of Forrest County, Mississippi, for a prohibitory injunction against the said appellants mentioned in the caption hereof, and an order and fiat were issued by the circuit judge, returnable before the chancery court, and the clerk of the chancery court was directed to issue the writ of prohibitory injunction. Thereafter, the appellants filed a motion to dissolve and the cause was heard by the special chancellor on the motion to dissolve and on the demurrer. Both the motion and the demurrer were overruled, and an interlocutory appeal was granted to this Court to settle the controlling principles of law involved.
The assignment of error and briefs on behalf of the appellants are devoted almost exclusively, if not entirely, to a discussion of the point as to whether or not under Sec. 1657, Code of 1942, or any other statute or constitutional provision, the circuit court had the power in vacation to transfer this cause to the chancery court and to direct its clerk to issue the prohibitory writ of injunction. The case is not briefed by them on the merits and the briefs are not therefore helpful to us in deciding all of the principles of law involved. The circuit court struck the demurrer and held that it had no jurisdiction of the case, since the same was then pending before the chancery court under the circuit court's order of transfer.
(Hn 1) We think that the circuit court properly struck the demurrer from the files of its court, and in transferring the cause to the chancery court the circuit court acted in substantial compliance with the said Sec. 1657, Miss. Code of 1942. While the chancellor overruled the motion to dissolve, we do not find in the record any order that he may have rendered on the demurrer, except to say that the order based on demurrer was overruled.
(Hn 2) At any rate, the appellants raise and argue only one question in this Court, and that is that there was nothing pending in the chancery court (on account of the order of transfer having been rendered in vacation) when the writ of injunction was issued. We have repeatedly held that interlocutory appeals are not favored, and it has been the experience of this Court that many of such appeals have been improvidently granted and that they cause, instead of saving, additional expense and delay.
(Hn 3) We are therefore of the opinion that this Court should of its own motion dismiss this appeal so that the case may be properly developed in the chancery court on bill, answer and proof. We think the interlocutory appeal should be, and the same is, hereby dismissed.
Appeal dismissed.
Gillespie, McElroy, Rodgers and Jones, JJ., concur.