Warner v. Hogin , 148 Miss. 562 ( 1927 )

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 372, n. 53; p. 459, n. 49; 4CJ, p. 1175, n. 36 New; Trial, 38Cyc, p. 1292, n. 17 New. This is an appeal from the chancery court of Sunflower county from a decree of that court transferring this cause to the circuit court of that county.

Appellant, Warner, filed his bill against appellee, Hogin, to recover a money judgment, and, in aid of his cause of action, sought discovery and an accounting by appellee. Appellee demurred to the bill upon the ground that it failed to state a cause for discovery and accounting and that the subject of the litigation was therefore one of exclusive law jurisdiction. The demurrer was sustained by the court and appellant given leave to amend his bill, which leave he declined; thereupon the court entered an order transferring the cause to the circuit court. From the decree sustaining the demurrer and transferring the cause to the circuit court, an appeal was granted by the trial court to settle the principles of the cause. The appeal was granted under section 17, chapter 151, Laws of 1924, Hemingway's 1927 Code, section 9.

It will be observed from the statute that the chancellor, in term time, or in vacation, is authorized, in his sound discretion, to grant appeals from certain character of interlocutory decrees to settle the controlling principles, involved in the cause. The interlocutory decree appealed from in this case does not come within the provisions of the statute. The sole question involved was one of jurisdiction as between the chancery court and the circuit court — whether the cause of action was one of equity or law cognizance. It is true, that, in determining that question, it would be necessary for the court to decide whether appellant's bill, under the applicable, equitable principles, stated grounds for discovery and accounting; but the decision of the latter question would be merely incidental and in aid of the former question. The decision of the question of jurisdiction, as between the chancery court and the circuit court, was not a determination of "the principles involved in the cause."

Section 703, Code of 1906 (section 496, Hemingway's 1927 Code), provides that "the circuit court shall have jurisdiction of all cases transferred to it by the chancery court or remanded to it by the supreme court." By virtue of this statute, the circuit court acquired jurisdiction of the cause, regardless of whether it was one of equity or law cognizance. If, however, on a trial of the cause in the circuit court, it should develop that appellant has been denied a substantial right because of the fact that the cause was one of equity jurisdiction instead of law jurisdiction, appellant would be entitled to a reversal in this court on that ground. It is true that, under section 147 of the Constitution appellant would not be entitled to a reversal on the ground alone that the cause was one of exclusive equity jurisdiction, but he would be entitled to a reversal on the ground, if such ground existed, that the law court had failed to furnish him an adequate remedy, resulting in the denial to him of a substantial right.

The chancery court and the circuit court cannot make football of a case by kicking it back and forth from one to the other. Under our Constitution and statutes, when one of these courts transfers a cause to the other, the court to which it is transferred has jurisdiction to finally dispose of the cause. When such a cause is appealed to the supreme court from either the chancery court or the circuit court, it cannot be reversed, under section 147 of the Constitution, on the ground alone of a mistake of jurisdiction; but if, in addition to that error, the complainant party is denied a substantial right on account of the cause being in the wrong court, the supreme court will reverse it and send it to the right court.

The question is one of the jurisdiction of this court, and is raised by this court itself, under the authority of Ward v.Whitfield, 64 Miss. 754, 2 So. 493, and Talbot HigginsLumber Co. v. McLeod Lumber Co., 113 So. 435.

Appeal dismissed.