Smith v. Atkinson

Alexander, J.,

delivered the opinion of the court.

The bill was filed in this case to remove clouds upon title and for injunction. Preliminary injunction was granted which later, on motion of defendant, appellee here, was dissolved with damages. The decree of dissolution was entitled as such, and upon petition of appellant the chancellor granted an appeal in order to settle the controlling principles involved in the cause.

Appellees thereafter moved to dismiss the original bill, but such motion was denied by the chancellor on the gronnd that the said decree “did not dispose of all the issues raised by the bill.” Appellees now seek to have the appeal dismissed on the ground that the appeal is from an interlocutory decree and was not applied for and bond given within thirty days after the decree was filed. Code 1930, sec. 14. Such being the fact, no authority is needed to sustain appellees’ right to have the appeal dismissed. ■ Motion to snch effect was filed at an earlier day of this term but it was considered proper to hear such motion along with the appeal on its merits. This course was suggested by the uncertainty of the positions taken by respective' counsel who risked inconsistency in their contentions by construing the appeal both as from an interlocutory and a final decree, in either of which cases there appeared advantages to one or the other. Upon onr examination of the record, we find that both the chancellor and the appellant have treated the decree as interlocutory and the appeal therefrom is therefore untimely. The motion to dismiss the appeal is therefore granted. Other relief asked in the motion is pretermitted to abide the event of the cause on its merits.

Appeal dismissed.