McKee v. Coffee , 58 Miss. 653 ( 1881 )

Cooper, J.,

delivered the opinion of the court.

We are(asked by appellee to dismiss the appeal in this case because improperly taken. The objection made is, that it does not appear that the appeal was granted or the appeal-bond approved by the court below. Sect. 2310 of the Code of 1880 gives the right of appeal in all cases from decrees overruling demurrers, provided the appeal is applied for and bond given during the term of the Chancery Court at which the demurrer is overruled. Sect. 2311 ¡provides for appeals to be granted by the chancellor, in term-time or vacation, from interlocutory orders or decrees. By sect. 2317 the manner of ■obtaining appeals, other than those provided for by application to the chancellor, — i.e., appeals from iuterlocutory orders,— is stated to be by petition to the clerk of the court. Sect. 2322 provides that no petition shall be necessary for the validity of •an appeal, but that the filing of the record in the Supreme Court shall confer jurisdiction to try and dispose of the case, ■and that the appeal, when there is no petition, shall be considered as taken when the bond was filed.

The demurrer in this case was filed on the 4th of April, 1881; the appeal-bond was filed on the 5th, and is indorsed, “Approved by me in open court. J. E. Stone, clerk.”

We conclude that this approval of the bond in open court on the day succeeding the filing of the demurrer sufficiently shows the appeal to have been taken during the term at which the demurrer was overruled. No order or act of the chancellor or court was necessary to the validity of the appeal; if there had been a petition for appeal presented, it would have been properly addressed to the clerk, under sect. 2317, because the appeal was a matter of right, under sect. 2310, and not one which thé chancellor might or might not grant, under sect. 2311.

We are of opinion that the chancellor erred in overruling the demurrer. The wrongs complained of are such as are constantly redressed by actions at law, and for which, except under peculiar circumstances, which are not shown to exist here, relief cannot be sought in equity. It is apparent that the bill cannot be sustained as a bill for discovery, because, if ■for no other reason, the bill shows that complainant has full knowledge of the matters as to which discovery is prayed.

The decree overruling the demurrer is reversed, demurrer ¡sustained, and bill dismissed.