Mid-South Paving Co. v. State Highway Commission

ON MOTION TO DISMISS APPEAL. On September 23, 1944, appellants filed their bill in attachment in chancery against the Trinidad Asphalt Mfg. Co., of Missouri as the principal defendant and against the Mississippi State Highway Commission as a defendant alleged to be indebted to its codefendant. Sections 2729 et seq., Code 1942. On September 30, 1944, the Highway Commission moved to quash the process so far as it was concerned and for its discharge and dismissal on the ground that the proceeding was in effect an attachment against the Commission, and that the statutes have not permitted such a proceeding against it, the Commission being an agency of the state. On the return day the nonresident defendant presented its petition and bond for removal to the federal court. Thereafter on November 27, 1944, the chancery court entered an order sustaining the motion of the Highway Commission and dismissing it as a party, and two days later, the Court made another order sustaining the petition of the nonresident defendant for removal of the cause to the federal court. Within due time the complainant perfected its appeal to this Court from the order dismissing the Highway Commission as a party. The principal argument by the Commission is that the order of dismissal is not appealable. The statute, Section 1147, Code 1942, expressly allows an appeal from any final decree, with certain exceptions not here involved. When a decree dismisses the bill as to one party and it is not contemplated that any further proceedings are *Page 767 to be taken against him, it is final as to that party, although other parties remain against whom further proceedings are to be taken. Carter v. Kimbrough, 122 Miss. 543, 84 So. 251. But while this is true, there must be a final decree as to all the parties before an appeal will lie; and the statute of limitations does not begin to run until final judgment as to all parties. Dickerson v. Western Union Telegraph Co., 111 Miss. 264, 71 So. 385. The reason for the rule is disclosed in Mulholland v. Peoples Bank, 187 Miss. 608, 612, 192 So. 308, namely, that ordinarily the rights and liabilities of the several parties are so connected or interwoven that appeals by piecemeal should not be allowed. But the rule as last above stated is not inflexible, as may be seen from the text and annotations 4 C.J.S. Appeal and Error, sec. 104, pp. 199 et seq., and as in other cases, it ought to go no further than the reasons upon which it rests. The reasons are that, before an appeal, the trial court should be allowed to go forward and develop the entire case, in the light of which it may be better determined whether in fact there was an error, or, if so, whether harmful, in the order of dismissal as to one or more of the parties. The rule presupposes that the case as to the remaining parties will remain in the trial court and will there be disposed of as to all the parties. Here, however, the order of dismissal as to the resident defendant produced the result that the other defendant promptly thereafter was able without impediment to procure and did procure an order of removal to the federal court, so that the trial court which made the order of dismissal cannot proceed to develop the entire case, and make a final decree as to all parties, from which an appeal to this Court would lie, including an appeal from the order of dismissal. The appellate court may say, as it has done, when an appeal such as here presented may be taken, but the court has no authority, in the face of the statute, to say that *Page 768 no appeal shall be taken at all. So long as the case stands as removed to the federal court, whereby the chancery court can do nothing further upon the merits as to any of the parties, than to preserve the statutory right of appeal, the case must for that purpose be regarded as disposed of as to all parties so far as the chancery court is concerned and that in consequence its order of dismissal here involved must be held to be now appealable, else it might turn out that it could never be appealed. The further argument is made by the Highway Commission that, by the order of removal, the state court, including this Court, no longer has any jurisdiction to deal with the case, regardless of what state statutes may be. For the purposes of discussion we may concede this as a general proposition, but the argument as presented overlooks the fact that the removal did not take along with it the Highway Commission, which, before the order of removal, had been dismissed from the record. The state court in making this order of dismissal was passing upon the meaning and effect of state statutes, wherein the federal courts must follow the holding of the state court, so that the rule that the transfer of a suit from the state court to the federal court does not vacate what was done in the state court prior to removal would have to apply. See 45 Am. Jur., pp. 954, 955. Finally the Commission says that if this appeal were entertained and the decree of dismissal were reversed the mandate when sent down would find no case pending in the lower court upon which it could operate. It does not follow that such a mandate would find no use when the complainant presented it duly certified to the federal court. Motion to dismiss overruled.