
    John Harvey v. Lumber Mineral Company.
    [51 South. 209.]
    ChakceRY Pleading and Practice. Decree overruling dermirrer. Appeal. Code 1906, § 34. Discretion to grant.
    
    
      An appeal from an interlocutory decree of the chancery court overruling a demurrer to a pleading is not a matter of right; under Code 1906, § 34, providing for such appeals, they must he allowed by the court or the chancellor exercising a sound discretion, and should be disallowed where no question controlling the litigation is presented and where an appeal will serve only to delay the cause.
    From the chancery court of Smith county.
    HoN. Samuel WhitmaN, Jr., Chancellor.
    The Lumber, etc., Company, appellee, was complainant in the court below; Harvey, appellant, was defendant theire. From a decree overruling a demurrer to complainant’s bill, defendant appealed to the supreme court. Since the case turned in the supreme court on the propriety of the appeal a further statement of the facts is deemed unnecessary.
    Code 1906, § 34, is in these words:
    “§ 34 (33) When a demurrer shall be overruled in a chancery court, or by the chancellor in vacation, the party demurring may appeal to the supreme court, without being first compelled to answer; and, if the decree be affirmed, the cause shall be remanded, to be proceeded with according to the practice of the court; but such appeal must be applied for, and bond given, within ten days after the demurrer is overruled, if in term time, and if decided in vacation within thirty days after the decree is filed in the proper office. Such appeal must be allowed by the court or the chancellor, but the appeal bond may be approved by the court or chancellor, or the clerk.”
    
      
      Deavours & Shands, for appellant.
    
      Hughes & Wills, for appellee.
    [Counsel discussed only the questions presented by tbe demurrer to tbe bill, mating no reference to tbe propriety of tbe appeal, bence synopses of tbeir briefs are not given.]
   Mayes, J.,

delivered tbe opinion of tbe court.

Tbis is an appeal under section 34 of tbe Code of 1906 from a decree of tbe chancellor overruling a demurrer. Tbe only mistake made by tbe chancellor was in permitting tbe appeal. It has served only to delay tbe cause, and in all such cases an appeal should be denied. In tbe case of State Fire Insurance Company v. Morrison, 95 Miss. 639, 48 South. 178, we held that an appeal of this character was not a matter of right, but rested in a sound discretion, to be exercised by tbe trial court. Whenever an appeal 'is allowed under tbis section, it should present a question controlling tbe litigation. An appeal should not be granted, on overruling a demurrer, merely because asked for. Affirmed and remanded.  