Harvey v. Lumber Mineral Co.

Mississippi Supreme Court
Harvey v. Lumber Mineral Co., 96 Miss. 627 (Miss. 1910)
51 So. 209
Mayes

Harvey v. Lumber Mineral Co.

Opinion of the Court

Mayes, J.,

delivered tbe opinion of tbe court.

Tbis is an appeal under section 34 of tbe Code of 1906 from a decree of tbe chancellor overruling a demurrer. Tbe only mistake made by tbe chancellor was in permitting tbe appeal. It has served only to delay tbe cause, and in all such cases an appeal should be denied. In tbe case of State Fire Insurance Company v. Morrison, 95 Miss. 639, 48 South. 178, we held that an appeal of this character was not a matter of right, but rested in a sound discretion, to be exercised by tbe trial court. Whenever an appeal 'is allowed under tbis section, it should present a question controlling tbe litigation. An appeal should not be granted, on overruling a demurrer, merely because asked for. Affirmed and remanded.

Reference

Full Case Name
John Harvey v. Lumber Mineral Company
Status
Published
Syllabus
ChakceRY Pleading and Practice. Decree overruling dermirrer. Appeal. Code 1906, § 34. Discretion to grant. An appeal from an interlocutory decree of the chancery court overruling a demurrer to a pleading is not a matter of right; under Code 1906, § 34, providing for such appeals, they must he allowed by the court or the chancellor exercising a sound discretion, and should be disallowed where no question controlling the litigation is presented and where an appeal will serve only to delay the cause.