Southern Saw & Mower Distributors, Inc. v. DOLMAR NORTH AMERICAN CORPORATION

317 So. 2d 400, 1975 Miss. LEXIS 1750

• Court: Mississippi Supreme Court
• Decided: August 18, 1975
• Docket: 48307
• Status: Published

Opinion

317 So.2d 400 (1975)

Southern SAW & MOWER DISTRIBUTORS, INC.
v.
DOLMAR NORTH AMERICAN CORPORATION.

No. 48307.

Supreme Court of Mississippi.

August 18, 1975.

Maxey, Clark & Casey, Laurel, for appellant.

John L. Jeffries, Laurel, F. Kent Stribling, Jackson, for appellee.

Before RODGERS, SMITH and WALKER, JJ.

SMITH, Justice.

In this case Dolmar North American Corporation, a foreign corporation, as plaintiff, brought suit against Southern Saw & Mower Distributors, Inc., as defendant, in the County Court of Jones County upon an open account. Defendant interposed a plea in bar under provisions of Mississippi Code Annotated section 79-3-247 (1972). It was alleged that plaintiff was a foreign corporation, doing business in Mississippi without having qualified under the laws of Mississippi to do so, and thus was barred from using the Mississippi Courts to enforce its claims which had arisen out of its intrastate commerce. Following an evidentiary hearing, the plea in bar was sustained by the county court and the case dismissed. From that judgment Dolmar appealed to the Circuit Court of Jones County. The circuit court reversed the county court, holding that the plea was without merit and setting the case on its docket for trial. It is from that order of the circuit court that Southern Saw has attempted to appeal to this Court. No final judgment has been entered by the circuit court and the case has not been tried upon its merits.

This Court, in innumerable cases, has held that an appeal may be taken to the Supreme Court from any final judgment of the circuit court in a civil case but that no appeal to this Court may be entertained from an interlocutory order of the circuit court (with a few specific exceptions not here involved). Moreover, a judgment or order of the circuit court is not such a final judgment from which an appeal will lie which does not settle the case as to all parties or which does not finally dispose of all of the issues presented. See Mississippi Code Annotated sections 11-7-213, 11-51-3 and 99-17-47 (1972). Also, State Tax Commission v. Clinton, 267 So.2d 312 (Miss. 1972), and cases there cited.

Mississippi Code Annotated section 11-51-79 (1972) provides, among other things:

... [W]hen on appeal from the county court a case has been reversed by the circuit or chancery court there shall be no appeal to the supreme court until final judgment or decree in the court to which it has been appealed... .

It follows that the present appeal is premature and cannot be entertained by this Court. The appeal is therefore dismissed and the case remanded to the circuit court for trial in due course.

Dismissed and remanded to Circuit Court.

GILLESPIE, C.J., and PATTERSON, INZER, ROBERTSON, SUGG and BROOM, JJ., concur.