
    Town of Woodville v. Chester H. Jenks.
    [48 South. 620.]
    Supreme Court. Constitutional Law. Constitution 1890, see. 147. Re- ' versáis forbidden in certain cases. Removal of causes from chancery to circuit courts.
    
    Under Constitution of 1890, sec. 147, providing that the supreme court shall not reverse a decree of the chancery court or judgment of the circuit court on the ground of a want of jurisdiction to render the 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, the supreme court, there being no other error, can only affirm the decree or judgment appealed from, and, in the absence of all action on the subject by the court in which the suit was begun, cannot order the removal of a cause from the one court to the other.
    From: tbe chancery court of Wilkinson county.
    Hon. J. S. Hicks, Chancellor.
    Jenks, appellee, was complainant in the court below, and the town of Woodville, appellant, was defendant there. From a decree overruling its demurrer to complainant’s bill the defend- and appealed to the supreme court.
    The appellee’s bill alleged that the town of Woodville, be■cause of services performed by him as an engineer superintending the construction of a water works and electric light plant, was indebted to him in the sum of $2,025, compensation claimed by him at five per centum on the contract price of the plant; less the credits mentioned in the bill. The bill alleged that “inasmuch as the dealings between complainant and defendant are voluminous, and extend over a period of several years, the court should state an account and fix the liability of the defendant to the complainant.” The prayer of the bill was that an account ■should be stated and that the town be required to pay over to complainant whatever sum of money might be found to be due complainant by defendant. The defendant demurred to the bill assigning as a ground that a court of equity was withoui jurisdiction, since the suit was in assumpsit. In the supreme court the appellant contended that the chancery court erred in overruling appellaift’s demurrer, and in failing to transfer the case to the circuit court.
    
      Bramlette & Tucker, for appellant.
    The* account sued on was not a mutual account. The appellee’s claim is one in assumpsit. Hence the chancery court is without jurisdiction. Abbey v. Owens, 57 Miss. 297; Barnard v. Sykes, 72 Miss. 297, 18 South. 450; Adams v. Cotton Mills, 89 Miss. „865, 43 South. 65.
    It may be contended that inasmuch as the chancery court has assumed jurisdiction, the supreme court, under the state constitution, section 147, will not reverse the decree, under the ruling of Cazeneuve v. Curell, 70 Miss. 521, 12 South: 32. But if this be tine, the chancery court should, su,a sponte, have transferred the case to the circuit court, for our constitution, section 162, provides that this shall be done in cases where the circuit court has exclusive jurisdiction. Hence, if the supreme court does not dismiss the bill, the case should be, under appropriate order of this court, remanded to be transferred, to the circuit court.
    
      ■ In addition to tlie mandatory section 162 of our Constitution or rather in aid of it, we insist that the appellant is entitled to a. trial by jury, an inalienable right confirmed by section 31-of our Constitution. Hence, if the bill be not dismissed on this-appeal, further proceedings below should be in the circuit court.
   Fletcher, J.,

delivered the opinion of the court

The demurrer interposed to the bill in this case raises no-question, except that the cause is of common-law, and not equity,, cognizance. The chancery court, however, overruled the demurrer, thereby taking jurisdiction. Under section 147 of the Constitution of 1890 this court is powerless to reverse for this cause.. Nor do .we think we are authorized, as urged by counsel, to enter an order here transferring the cause to the circuit court. Such a procedure is for the chancery court..

Affirmed..  