Summary
In Allen v. Sowell, 231 Miss. 597, 97 So.2d 227 (1957), the defendant obtained a verdict in the county court. Plaintiff appealed to the circuit court where the circuit judge held that certain instructions granted by the county judge were erroneous, and an order was entered reversing the county court.
Summary of this case from Byrd v. Sinclair Oil Refining CompanyOpinion
No. 40532.
October 7, 1957.
1. Appeal — dismissed — Circuit Court's order reversing case, predicated upon erroneous instructions granted by County Judge — not a final judgment.
Upon order of Circuit Court reversing case, predicated upon conclusion that certain erroneous instructions had been granted by County Judge, the case became a pending cause on the docket of the Circuit Court for a new trial de novo, and since order of reversal was not a final judgment, no appeal would lie therefrom and appellee's motion to dismiss would be sustained. Sec. 1616, Code 1942.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Tunica County; E.H. GREEN, Judge.
Roberson, Luckett Roberson, Clarksdale, for movant.
I. The appeal should be dismissed because it is an appeal from a judgment of the Circuit Court, which is not a final judgment. Bank of Courtland v. Long Creek Drainage Dist. No. 3 of Panola County, 133 Miss. 531, 97 So. 881; Jones v. Cashin, 133 Miss. 585, 98 So. 98; Peebles v. Miles, 189 Miss. 623, 198 So. 29; Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So.2d 5; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Secs. 1147, 1616, Code 1942.
Kenneth Rayner, Memphis, Tennessee; James Stone Sons, Oxford, for movee.
I.E.W. Allen, appellant, confesses the motion of appellee to dismiss appeal to the extent that this cause should be remanded to the Circuit Court of Tunica County for a trial de novo in that Court, and to this extent only.
ON MOTION TO DISMISS APPEAL
In the county court a verdict and judgment was entered for defendant. Plaintiff appealed to the circuit court, where the circuit judge filed an opinion holding that certain erroneous instructions were granted by the county judge and entered an order reversing the county court. Four days later, defendant, appellant here, attempted to perfect an appeal to this Court. Plaintiff, appellee here, now moves to dismiss the appeal because no final judgment was rendered by the circuit court.
(Hn 1) Upon reversal of the county court for reasons not requiring judgment to be entered for plaintiff, the case became a pending cause on the docket of the circuit court for a new trial de novo. Section 1616, Mississippi Code of 1942. The order of reversal was not a final judgment, and no appeal could lie therefrom.
Motion to dismiss sustained.
Roberds, P.J., and Lee, Arrington and Ethridge, JJ., concur.