BOWEN, ET AL. v. CLARK

1. Appeal — no appeal allowable from order dismissing petition for intervention.

Although petition to intervene was granted and then dismissed on the hearing of the petition on its merits, the order of dismissal was nevertheless interlocutory or procedural from which no appeal was allowable. Sec. 1148, Code 1942.

Headnote as approved by McGehee, C.J.

McGEHEE, C.J.

(Hn 1) This motion to dismiss the appeal of the Associates Discount Corporation from the order of the Chancery Court of Hinds County dismissing the petition of the said Associates Discount Corporation to intervene in this case, and wherein the appellee contends that the order of dismissal of the petition for intervention was "interlocutory" or a "procedural order" from which no appeal is allowable under Section 1148, Code of 1942, the appellant seeks to distinguish the case of Farmers Merchants Bank v. Rushing, et al, 175 Miss. 826, 167 So. 784, and other cases, on the ground that in that case the petition to be allowed to intervene was denied, whereas in the instant case the petition was granted but later dismissed on the hearing of the petition on its merits, we are unable to determine that there is any difference between a denial of a petition to be allowed to intervene, and the allowance of such a petition where the same is later denied upon the merits.

Moreover, if the chancellor misapplied Section 870, Code of 1942, the error in that behalf can be preserved for decision on appeal after the final disposition of the case between the plaintiff Burton E. Clark and the defendant William Coleman Bowen, and which suit is still pending and undisposed of in the trial court. Therefore the motion to docket and dismiss the case must be sustained.

Sustained.

Hall, Lee, Kyle, Ethridge and Gillespie, JJ., concur.