Yazoo City v. Allgood

delivered the opinion of the court.

Under the facts disclosed by this record, this court does not feel justified in enforcing the written agree-, ment of the parties that this cause “be reversed, temporary injunction dissolved, and decree entered in the supreme court finally dismissing the bill with preju*683dice.” The parties, by; agreement, are privileged to dismiss the appeal without, a decision of the questions presented by the assignment of errors, in which event the lower court will proceed with this cause as equity and the circumstances may demand; or the parties may agree that the temporary injunction be dissolved, and, to that end, that the decree appealed from be reverrsed .and the temporary injunction dissolved, in which event the cause will be remanded • for further proceedings by the lower court as the circumstances and merits of the ease may require. This court, as an appellate tribunal, cannot, however, sanction and execute the agree-men of the parties to reverse the decree of the court below and finally to dismiss the bill with prejudice. A showing’ in good faith has been made that W. A. Henry and S. S. Griffin are probably interested in any damages which J. S. Allgood, the appellee and complainant in the court below, may be entitled to recover when the merits of the litigation are inquired into and decided. The appeal is prosecuted from an interlocutory order of the chancellor, declining to dissolve a temporary injunction; and the question as to whether or not the complainant is entitled to damages from the city has never been adjudicated. In the absence of an agreement of the parties, this cause, in any event, will be remanded for further proceedings. If we should affirm the decree of the chancellor, the cause will be remanded for further proceedings; and, likewise, if we should reverse the decree and dissolve the temporary injunction, the decision would not necessarily dispose of the whole case, but the cause will be remanded. Whether the appeal is dismissed or the decree is by agreement reversed, in either event the parties objecting to the entry of a final judgment by this court on the ground that they are now the real parties in interest will be privileged to make application to the chancellor to become parties complainant, and the chancelor would be priv*684ileged to permit them to become parties complainant upon such terms as to him' may seem equitable and right.

The parties to this litigation can, of course, control the disposition of this appeal; but they are not privileged to elicit by agreement a solemn adjudication of the real questions in dispute, to the hurt or injury of third parties. This court must be careful not to enforce any agreement of the nominal parties by the entry of a judgment that will likely prove a stumbling block in the way of, if not an absolute denial of, justice to innocent third parties. Sivley v. Sivley, 96 Miss. 134, 50 So. 552. We do not mean to hold that Judge TIenry, Mr. Griffin, or Mr. Rhodes, is entitled to have the temporary injunction retained pending a trial of the case on its merits, or to say that they are in fact entitled to recover damages — these are questions to be presented to the lower court, upon application and proper issue between objectors and the city.

The motion therefore for a final judgment will be overruled, but the parties may elect to dismiss the appeal or even to agree that the decree of the lower court should be reversed, the temporary injunction dissolved, and the cause remanded for further proceedings on the merits.

Overruled.