Opinion
No. 42622.
March 18, 1963.
1. Appeal — jurisdiction — appeal taken after time had expired, dismissed.
Supreme Court had no jurisdiction to review action of Chancellor overruling general demurrer where appeal was taken after time had expired.
2. Appeal — interlocutory appeal from order overruling special demurrer, improvidently granted.
Order overruling special demurrer was procedural, and Supreme Court had no jurisdiction to entertain appeal therefrom.
Headnotes as approved by Rodgers, J.
APPEAL from the Chancery Court of Warren County; S.B. THOMAS, Chancellor.
Prewitt Bullard, Vicksburg, for appellants.
I. It is insufficient when bill for discovery waives answer under oath. City of Hattiesburg v. Cobb Brothers Construction Co., 173 Miss. 20, 163 So. 676; Dodson v. Hutchinson, 148 Miss. 640, 114 So. 736; Palmetto Fire Ins. Co. v. Allen, 141 Miss. 640, 105 So. 482; Griffith's Mississippi Chancery Practice, Sec. 364.
II. United States Fidelity and Guaranty Company is a necessary party. Lumbermen's Indemnity Exchange v. Herrick, 143 Wn. 508, 255 P. 664; Palmetto Fire Ins. Co. v. Allen, supra; Parkinson v. Mills, 172 Miss. 784, 159 So. 651; 29 Am. Jur., Insurance, Sec. 1807; Griffith's Mississippi Chancery Practice, Secs. 108, 138, 149; Mecham, Outlines of the Law of Agency, Sec. 569.
Brunini, Everett, Grantham Quin, Harry R. Allen, Vicksburg, for appellee.
I. This court has no jurisdiction to entertain an interlocutory appeal from an order overruling a special demurrer. Cochran v. Cochran, 221 Miss. 780, 74 So.2d 841; Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360; Liberty Trust Co. v. Planters Bank, 155 Miss. 721, 124 So. 341; Nash v. Winters, 235 Miss. 330, 109 So.2d 336; Universal Life Ins. Co. v. Kelly, 197 Miss. 1, 17 So.2d 797.
II. The matters which the Girods attempt to raise by special demurrer and special plea were disposed of by the Chancellor's order overruling the general demurrer to the amended bill. No appeal was taken from this order. Therefore, this court is without jurisdiction to consider these questions. Sec. 1148, Code 1942.
III. United States Fidelity and Guaranty Company is not a necessary party to this proceeding. Barry Brewer v. Wright, 168 Miss. 216, 150 So. 186; Gaddy v. Browning, 212 Miss. 782, 55 So.2d 494; Page v. Marcel (La.), 44 So.2d 363.
This is an appeal from an order of the Chancery Court of Warren County overruling a special demurrer set out in appellants' answer. The demurrer raised the issue that the insurer in a certain insurance policy was a necessary party to the litigation because the insurance policy on which it is alleged premiums are due and outstanding was a contract between appellants and the insurance company and appellee was not a party to the contract. Appellants' demurrer to the bill was overruled because the bill alleges that appellee paid the premiums due on the policy for appellants and that appellee was therefore entitled to recover premiums paid for and on behalf of appellants.
(Hn 1) There is considerable discussion in the briefs filed by the parties as to whether or not the alleged right of appellee to recover premiums paid also entitled him to enforce an agreement between the insured and insurer in the insurance contract, requiring certain reports to be made by the insured. We express no opinion as to whether or not appellee can enforce a contract to which he is not a party or whether he is restricted to the rules in chancery with reference to bills of discovery. We have no jurisdiction to review the action of the chancellor overruling the general demurrer since the appeal was taken after the time had expired.
(Hn 2) We are of the opinion that the order of the chancellor in granting an interlocutory appeal on the special demurrer was improvidently granted, since the Supreme Court of Mississippi has no jurisdiction to entertain a case on appeal from an order overruling a special demurrer because it is a procedural matter.
Universal Life Insurance Company v. Keller, 197 Miss. 1, 17 So.2d 797; Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360; Cochran v. Cochran, 221 Miss. 780, 74 So.2d 841.
The appeal will therefore be dismissed.
Appeal dismissed.
McGehee, C.J., Lee, P.J., and Arrington and McElroy, JJ., concur.