ON SUGGESTION OF ERROR. 1. APPEAL AND ERROR.
The Supreme Court would, ex mero motu, determine whether order appealed from was in fact appealable, where doubt as to appealability suggested itself to court on suggestion of error after affirmance of order.
2. APPEAL AND ERROR.
In suit for mandatory injunction to compel defendant to restore water connections, wherein chancellor granted injunction with findings limited to right of injunction reserving the merits and allowed appeal "to settle the principles," chancellor's order was tantamount to fiat for preliminary injunction and was not appealable.
ON SUGGESTION OF ERROR.
Alexander, J., delivered the opinion of the court on suggestion of error.
In our original opinion we affirmed the granting by the chancellor of a mandatory injunction against appellant. The prayer of appellee's bill was for such injunction to restore water supply and for damages. The trial judge limited his findings to the right of injunction reserving the merits. Appeal was allowed by the chancellor "to settle the principles."
No point having been made as to the right of appeal, and the hearing having been upon bill, answer and proof, we entertained the appeal. Upon suggestion of error doubt as to the appealability suggested itself to us, and in response to request for briefs upon the point raised ex mero motu (Liberty Trust Co. v. Planters' Bank, 155 Miss. 721, 124 So. 341), neither party seeks to support such doubt. Appellant remains insistent upon the right and duty of the court to settle all the controlling principles of the cause, including the factual issues of liability which relate to the merits, while appellee, being content with an affirmance retaining the preliminary mandatory injunction with remand for hearing upon the merits, withholds endorsement of the court's suggestion.
We have concluded, however, that an appeal does not lie from the order. The merits and controlling principles are not before us. The order of the learned chancellor is tantamount to a fiat for preliminary injunction. Its issuance was the sole object of the inquiry and the only relief granted. Alexander v. Woods, 103 Miss. 869, 60 So. 1017. Compare State Board of Barber Examiners v. Broom, 161 Miss. 679, 137 So. 789; Reynolds v. City of New Albany, 166 Miss. 282, 146 So. 459; Liberty Trust Co. v. Planters' Bank, supra; Vicksburg Water Works Co. v. City of Vicksburg, 5 Cir., 153 F. 116, 82 C.C.A. 250.
In view of the foregoing conclusions, the former opinion is withdrawn and the appeal is dismissed.
Appeal dismissed.