Wilson v. Pugh

Campbell, C. J., delivered the opinion of the court. This is an appeal from a decree of the Chancellor made on dissolving an injunction by which one hundred dollars were allowed as damages under § 1919 of the Code of 1880. The decree was made on the 2d of April, and on the 21st of April the appellant petitioned the clerk of the court in which the suit was pending for an appeal from the decree requiring him to pay the hundred dollars. A motion is now made to dismiss the appeal because it was not applied for in ten days after the decree, and was not granted by the Chancellor as provided by § 2311 of the code. The decree is interlocutory, and the right of appeal is governed by the section last cited. The fact that by the decree money is required to be paid and that an execution for it may be issued does not alter the case. The damages awarded are a consequence of the dissolution of the injunction, and the correctness of an award of damages depends on the rightfulness of the decree dissolving the injunction, and the party aggrieved desiring to appeal from the interlocutory order or decree and to supersede it must avail of § 2311 of the code, and if the Chancellor should refuse the appeal or supersedeas, application can be made to the judges of the supreme court severally under § 1404 of the code. Motion sustained.