Sivley v. Sivley

50 So. 552, 96 Miss. 134

• Court: Mississippi Supreme Court
• Decided: October 15, 1909
• Status: Published

Opinion

WilliaMSON,

* Special Judge,

delivered tbe opinion of the court.

We shall not undertake a statement of tbe facts contained in this motion, but leave it to be stated by tbe reporter. When an appeal is taken to tbe supreme court of tbe state by any party, tbe jurisdiction to determine tbe cause is thereby transferred to that court, and any subsequent disposition made of tbe case can only be made with the consent of tbe court. It is true, ordinarily, that tbe parties may withdraw their appeal, or make any other disposition of tbe case which they may choose to make, provided it be not inconsistent with tbe duties of tbe court, or in any way invasive of tbe province of tbe court; but even then it can be done only when all the parties legally or equitably interested in tbe subject-matter of tbe litigation agree, and tbe court consents. When tbe appeal is taken, and tbe appellate court obtains jurisdiction of any cause, tbe court will allow no disposition to be made of tbe cause by tbe nominal parties, where it is made to appear to tbe court that it is reasonably probable that tbe interest of third parties, having an equitable interest in tbe suit, tbougb not actually parties to tbe record, will be destroyed or prejudiced.

In examining tbe motion under consideration, it is manifest to us tbat it is at least probable that May, Mowers & Whitfield bave an equitable interest in this litigation, and tbat, if tbey bave an equitable interest, tbat interest would be prejudiced by any disposition made of tbe case by tbe actual parties of record, and tbe court will refuse to permit tbe cause to be disposed of in any way by tbe act of any of tbe parties, and retains tbis cause for bearing on its merits.

It is further tbe judgment of tbe court tbat May, Mowers & Whitfield, claiming to be equitably interested in tbis judgment, shall bave tbe right to appear as attorneys for themselves and argue, orally or by brief, tbe merits of tbis case.

So ordered.

Whitfield, C. X, because of bis relationship to one of the parties in interest recused himself in this case and C. M. Williamson, Esq., a member of the supreme court bar, was appointed and presided as a special judge in his place.