Opinion
No. 33198.
May 2, 1938.
APPEAL AND ERROR.
In interpleader, wherein order dismissing intervener's answer and cross-bill was not connected with judgment appealed from by plaintiff, intervener, who did not prosecute appeal and give bond, could not assign cross-error to obtain review of dismissal of intervener's answer and cross-bill.
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Harold Cox, of Jackson, for appellant and cross-appellee, on motion to dismiss cross appeal.
Rubush is a mere interloper on this appeal. He is seeking here to have this court hear him as a pretended cross-appellee under a plea for and on behalf of the appellees. The principal part of his brief is consumed in arguing the appellees' cause for them, and in complaining of the supposed error of the lower court in failing to award the appellees a decree against the appellant. He then very subtly suggests that the lower court erred, incidentally, in failing to render a decree in his favor against the Planters Lumber Company, from which decree he filed no appeal, but failed to file a proper bond therefor as required by law. When the appellees dismissed their respective cross-bills against Rubush, he was divested of all connection and concern with the controversy presented by this appeal between the appellant and the appellees.
Barrett v. Carter, 13 So. 625, 69 Miss. 593; Culpepper v. Holmes, 154 So. 726, 170 Miss. 235; Crawley v. Ivy, 116 So. 90, 149 Miss. 764; Walter Fisher Co. v. I. Lowenberg Co., 116 So. 91, 149 Miss. 761.
Even if Rubush had perfected an appeal from said decree of the court below, still his brief should be stricken from the record in this case because he has filed no cross-assignment of error complaining thereof.
Miss. Fire Ins. Co. v. Evans, 120 So. 738, 153 Miss. 635; Sec. 24, Code of 1930.
The filing of a bond for appeal by Rubush is a condition precedent to the jurisdiction of this court to review his appeal from the decree of the court below.
Hardaway Boykin v. Biles, 1 S. M. 657; Sections 26 and 40, Code of 1930; Buckley v. United Gas Public Service Co., 168 So. 463, 176 Miss. 282.
Lotterhos Travis and Vardaman S. Dunn, all of Jackson, for appellee and cross-appellant, W.E. Rubush.
A formal cross assignment of errors was filed by Rubush on March 30, 1938, as will appear from the file in this court.
Rubush was adversely affected by the decree of the lower court in favor of the Planters Lumber Company and is therefore entitled to have that decree reviewed here.
All of the record in this case bearing on the cross-assignment of errors by Rubush is before the court, and since Rubush is a proper party in direct appeal, he is entitled to cross appeal.
Walter Fisher Co. v. I. Lowenberg Co., 149 Miss. 761, 116 So. 91.
Rubush is a necessary party to this suit as distinguished from simply a proper party, in that no decree could be entered without directly affecting his interests.
Griffith's Chancery Practice, secs. 36 and 108.
Since Rubush is a necessary party, he is entitled to cross-appeal without bond as though he were actually named in the direct appeal.
Buckley v. United Gas Service Co., 176 Miss. 282, 168 So. 462.
That a cross-appellant need not furnish an appeal bond is settled in Wilson v. Jourdan, 79 Miss. 133, 29 So. 823, and Crawley v. Ivy, 149 Miss. 764, 116 So. 90.
The Planters Lumber Company filed a bill of interpleader against the Plumbing Wholesale Company and other materialmen to settle claims and rights in connection with a certain construction project. W.E. Rubush was not made a party defendant to this original bill, but he filed an answer and cross-bill against the Planters Lumber Company, claiming certain rights in matters in controversy, and the court permitted him to intervene as a party to the suit, and to file an answer and cross-bill; but afterwards, on the hearing, dismissed his answer and cross-bill by a separate order or judgment, from which no appeal was prosecuted by the Planters Lumber Company. In its application for appeal, and appeal bond, the Planters Lumber Company recited the judgment from which it desired to appeal, and executed its appeal bond, and the parties mentioned in the appeal bond, who had obtained a judgment against the Planters Lumber Company, were made appellees.
Thereafter, without filing an appeal bond, W.E. Rubush filed a cross-assignment of error, and briefs thereon, seeking to review claims adjudged against him, and the dismissal of his answer and cross-bill on the appeal prosecuted by the Planters Lumber Company. A motion was made to strike the brief and cross-appeal, and it appears that, inasmuch as the order dismissing his answer and cross-bill was a separate subject matter of litigation, not connected with the judgments appealed from in such way as to allow an appeal without bond by means of cross-assignments of error, no cross-appeal was proper. In other words, the Planters Lumber Company did not appeal from the judgment disposing of Rubush's claims, and Rubush himself has not filed an appeal bond. In Barrett v. Carter Bros. Co., 69 Miss. 593, 13 So. 625, it was held that defendants as to whom the bill had been dismissed have no right to join in an appeal with their codefendants, against whom judgment is rendered. In Culpepper v. Holmes et al., 170 Miss. 235, 154 So. 726, 727, we said: "The judgment is separable and independent, and it is not competent for Donald McLean, not having appealed, to cross-assign errors on the appeal of Culpepper as against Holmes. Consequently, we do not pass upon the questions involved in the trial between Culpepper and the defendant Donald McLean, as they are not rightfully before us." See, also, Crawley v. Ivy, 149 Miss. 764, 116 So. 90; Walter Fisher Co. v. Lowenberg Co., 149 Miss. 761, 116 So. 91.
We are of the opinion, therefore, that the said Rubush was not entitled, without prosecuting an appeal and giving bond, to assign cross-error to the briefs thereon; and the motion to strike is sustained.
Motion sustained.