* Corpus Juris-Cyc References: Appeal and Error, 3CJ, p. 371, n. 50; p. 372, n. 51, 53; 4CJ, p. 1163, n. 16 New; Courts, 15CJ, p. 1077, n. 13; Juries, 35CJ, p. 148, n. 6; p. 149, n. 15; p. 159, n. 33; p. 161, n. 50; p. 162, n. 68; p. 170, n. 61. Appellee filed its bill in the chancery court of Forrest county against appellant to enjoin the latter from prosecuting an action at law against appellee then pending in the circuit court of Forrest county. A temporary injunction was issued on the filing of the bill. There was a hearing on motion by appellant to dissolve the injunction, which motion was heard by the court on bill, demurrer, plea, and answer to the bill by appellant, and on documentary and oral evidence taken at the hearing, resulting in a decree overruling the motion to dissolve the injunction. From that decree appellant was granted this appeal to settle the principles of the cause.
The only question for consideration by this court is whether or not the subject-matter of the litigation is one *Page 188 of equity or common-law jurisdiction. If any error was committed by the court in refusing to dissolve the injunction, such error consisted alone of the fact that the chancery court assumed jurisdiction of a cause of action which was exclusively of common-law jurisdiction. We are met, therefore, at the threshold of the case with the inhibition of section 147 of the Constitution, which provides as follows:
"No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the supreme court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the supreme court may remand it to that court which, in its opinion, can best determine the controversy."
In such a case as this, section 147 of the Constitution is a limitation on the power of the supreme court. And a question, therefore, is involved which this court will raise for itself where neither party raises it. The supreme court is prohibited by the express terms of the above section of the Constitution from passing on the question and entering judgment thereon.Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32; Goyer v.Wildberger, 71 Miss. 438, 15 So. 235; Adams v. Bank,74 Miss. 307, 20 So. 881; Day v. Hartman, 74 Miss. 489, 21 So. 302; Illinois Central R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760; Irion v. Cole, 78 Miss. 132, 28 So. 803; Decell v.Oil Mill, 83 Miss. 346, 35 So. 761; Hancock v. Dodge,85 Miss. 228, 37 So. 711; Mississippi Fire Association v. Stein,88 Miss. 499, 41 So. 66; Woodville v. Jenks, 94 Miss. 210, 48 So. 620; Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567;Metzger v. Joseph, 111 Miss. 385, 71 So. 645; White v.Willis, 111 Miss. 417, 71 So. 737; Cooley v. Tullas,115 Miss. 268, 76 So. 263; Yazoo Delta Mortgage Co. v. Hutson, *Page 189 140 Miss. 461, 106 So. 5; Engleburg v. Tonkel, 140 Miss. 513,106 So. 447.
It was held in the Cazeneuve case that the prohibition of Constitution was not confined to final judgments or decrees, but applied also to appeals from interlocutory decrees involving the question whether the cause was one of equity or law jurisdiction. In the Jenks case, it was held that, where an action was brought in the chancery court to recover on a purely legal demand a balance due under an alleged contract, although the chancery court had no jurisdiction, a decree overruling a demurrer to the bill on that ground could not be reversed by the supreme court.
One of the ablest opinions of the supreme court construing section 147 of the Constitution was written more than thirty years ago. We think it would be of benefit to the bench and bar of the state at this time, in this particular case, to embody in this opinion certain parts of that opinion. We quote from it:
"The record shows that this suit is really an action of trespass brought in a court of equity. The recovery is sought for an oppressive and excessive levy made by a sheriff of a writ of attachment, and is purely an action for damages for a trespass. . . .
"But the court assumed jurisdiction, and, as this is the only error assigned, or apparent, we cannot reverse the decree overruling appellant's demurrer to the bill of complaint. . . .
"We find here practical authority for the virtual obliteration of the lines of demarkation between courts of law and equity, if the judges and chancellors of the inferior courts choose to disregard, or fail to observe, those distinguishing lines. And this court is forbidden to reverse or annul decrees or judgments rendered in the lower courts, even if there was want of jurisdiction, if no other error than want of jurisdiction is to be found. That diverse and conflicting rules of practice and procedure may obtain in the several court districts is plain. *Page 190 The chancery court of one district may assume jurisdiction of common-law causes, and the equity courts of the adjoining districts may refuse to entertain such jurisdiction. In the same district variant and uncertain rules and methods may obtain. The diversities of practice may be found in the same district under different chancellors or circuit judges from time to time presiding therein. It is practically within the power of the chancellors and circuit judges, under this provision of the Constitution, to virtually abrogate the distinction between courts of common-law and equity jurisdiction. We have the singular anomaly of a constitutional scheme of two courts, common-law and equity, and yet with power in the inferior judges to effectually blend the jurisdictions, each in his own district. But, remarkable as the results flowing from this anomaly are, we are not to disregard the plain requirements of the fundamental law. The court below, in the case at bar, clearly had no jurisdiction, and should have sustained the demurrer to the bill, and so have driven complainant to his common-law remedy. But the learned chancellor having entertained jurisdiction, and this being the only error committed, we are forbidden to reverse. . ..
"That the inhibition laid on this court in this section of the Constitution is not confined to action on final decrees or judgments is manifest from a consideration of the startling incongruity of the civil administration which would result from adopting the construction contended for by those who would restrict the inhibition to final decrees or judgments. We shall, in that case, have the intolerable anomaly of appeals maintainable from decrees or demurrers in courts of equity, in cases where the lower court was without jurisdiction, and, in like cases, no appeals allowed from judgments of circuit courts. Surely no one can be found to insist that this absurd inconsistency of civil administration was any part of the constitutional scheme for mitigating what must have been supposed to be the evils of too rigidly *Page 191 observing the bounds of jurisdiction between the courts of law and equity. . . .
"The only error assignable is the want of jurisdiction in the court below to render the decree, and, as the learned chancellor entertained jurisdiction, under section 147 of the Constitution forbidding a reversal in this court because of such error," etc.
It is true that, where the chancery court assumes jurisdiction of a cause of action cognizable alone in the circuit court, in such a case the absolute right of trial by jury of the issues of fact given in circuit court causes by section 31 of the Constitution is taken away, for our court has held that it rests in the discretion of the chancery court whether a jury shall be granted to try issues of fact. But section 147 is just as much a part of the Constitution and is just as binding on the courts as section 31 of the Constitution. They are to be construed together. Construed together, they mean that the right of trial by jury of issues of fact in civil causes in the circuit courts shall remain inviolate, except in such cases of exclusively law cognizance as the chancery courts may erroneously assume jurisdiction of, where such error of jurisdiction is the only error in the decree. In such cases the absolute right of trial by jury of the issues of fact is denied; it being discretionary with the chancellor whether such issues of fact shall be tried by a jury.
Appellant's action at law in the circuit court was enjoined by appellee in the chancery court, on the ground of the inadequacy of appellee's remedy in the circuit court. One of the original heads of equity jurisdiction was bills for injunctions by defendants restraining actions at law against them on the ground that they had defenses which the law courts could not entertain. This is that character of case. The chancery court determined for itself the question of jurisdiction. It was given that right by section 147 of the Constitution. This court, under the Constitution, is without power to correct *Page 192 the error, if there was error, in the chancery court so assuming jurisdiction.
Affirmed and remanded.
COOK, J., took no part in the decision of this case.