Adams Lumber Co. v. Stevenson

• Citation: 42 So. 796,89 Miss. 678
• Court: United States State Supreme Court of Mississippi
• Decision Date: 11 February 1907
• Parties: ADAMS LUMBER COMPANY, ET AL., v. JAMES E. STEVENSON

42 So. 796

89 Miss. 678

ADAMS LUMBER COMPANY, ET AL., v. JAMES E. STEVENSON

Supreme Court of Mississippi

February 11, 1907

November 1906

FROM the chancery court of Amite county, HON. WILLIAM P. S VENTRESS, chancellor.

Stevenson the appellee, was complainant and cross-defendant in the court below, and the Lumber Company, a corporation, and another, appellants, were defendants and cross-complainants there. From a decree dismissing the cross-bill, and awarding the relief sought by Stevenson in his original bill, the defendants and cross-complainants appealed to the supreme court.

The decree appealed from was rendered April 16, 1904; the appeal bond was filed and approved February 10, 1905; the record was filed in the supreme court July 7, 1906, and citation in error was issued by the clerk of the supreme court September 14, 1906, and it was served upon appellee September 26, 1906.

The appellee, Stevenson, moved the supreme court to dismiss the appeal on the ground that it was barred by the two years' statute of limitation, Code 1892, § 2752, providing that appeals to the supreme court shall be taken within two years next after rendition of the judgment or decree complained of and not afterward, except as to persons under disability of infancy or of unsound mind. This motion was sustained in due course by reason of no objection being made to it by appellants. Subsequently appellants moved the court to reinstate the case, claiming that notice had not been given them of the motion to dismiss, and that appellee's motion upon which the cause was dismissed was prematurely heard on January 12, 1907, the cause being on and belonging to the docket of the court for the second district, which under the rules of the court, was not hearable before January 26, 1907. The case was reinstated by order of the court, and again came before the court on the motion of appellee to dismiss.

Motion overruled. Motion overruled.

J. H Price, for the motion.

The appeal was not taken in the manner and within the time provided by law. An appellant is required to see that the record is filed in the supreme court within the two years prescribed by law. Houston v. Witherspoon, 68 Miss. 188 (S.C., 8 So. 515); Harrison Co. v. Rogers, 85 Miss. 578 (S.C., 38 So. 310); Martin v. Phelps, 53 Miss. 134.

The decree from which appeal was taken was rendered on April 16, 1904; the record was filed in the supreme court on July 7, 1906; citation to appellee issued from the supreme court on September 14, 1906, and was served on appellee on September 26, 1906. The appeal was barred on April 16, 1906. Code 1892, § 2752. Chambliss v. Wood, 84 Miss. 209 (S.C., 36 So. 246).

Theodore McKnight, against the motion.

Code 1892, § 2752, merely provides that an appeal shall be taken within two years next after the rendition of the decree, and not after. This code section does not, however, provide what acts constitute the taking of an appeal. To determine this we must look to other code sections.

Code 1892, § 46, provides that written petition for appeal shall not be necessary, but that the filing of a transcript of the record in the office of the clerk of the supreme court shall confer jurisdiction on the court to try and dispose of the case. The section provides further that where there is no petition for appeal, as in the present case, "it shall be considered to have been taken when the appeal bond was filed; or, if there be no bond, from the time of the filing of the transcript of the record in the office of the clerk of the supreme court." Under this section it is too clear for dispute that the appeal is taken when the appeal bond is filed, in those cases where bond is required, and that in those cases where no bond is required the appeal is taken by filing the transcript with the clerk of the supreme court.

Code 1892, § 60, prescribes that "except as herein otherwise provided, an appeal shall not be considered as perfected, or a supersedeas awarded thereon, unless the bond required shall have been given and approved." It certainly should not be disputed that under this section the giving and approval of the appeal bond perfect the appeal.

The appeal bond was given and approved February 10, 1906. This was less than two years from April 16, 1904, the date of rendition of the decree from which appeal was taken. Under the provisions of Code 1892, § 68, the clerk is not required to make up a transcript of the record until the appellant shall have complied with the law in reference to his appeal, which in this case means the giving and approval of the appeal bond; after which it becomes the duty of the clerk to make and certify a transcript of the record, and transmit it, together with the appeal bond, to the clerk of the supreme court. If the appeal was not rendered during the term of the court at which the decree was rendered, then the clerk shall issue a summons to the opposite parties to appear and answer the appeal in the supreme court; but if appeal is perfected during the term of the court at which the decree was rendered then a summons is unnecessary.

An appeal is perfected before any notice is required to be given; or, in other words, no notice is to be issued or served until the appeal is perfected. If the appellee is personally or constructively present in the lower court when the appeal is perfected by the giving and approval of the appeal bond, then he is not entitled to be notified to appear in the supreme court to answer the appeal. For he is presumed to know that the appeal has been perfected.

If the appeal is perfected by the giving and approval of the appeal bond in vacation, then the appellee is entitled to a notice or a summons to appear and defend the appeal which has been perfected against appellee by the giving and approval of such bond. Under Code 1892, § 72, the summons is to be served at least ten days before the time when it is returnable, and alias summons may be issued by the clerk of the supreme court returnable to the next term. Summons served within ten days of the return day shall be good for the next term after that to which it is returnable. See Neel v. Neel, 61 Miss. 630.

While our statutes provide for and allow the use of a petition for an appeal, yet such petition is not necessary, since the giving and approval of the appeal bond perfect the appeal.

If the giving and approval of an appeal bond perfect an appeal taken, say, one month after rendition of the decree, and without necessity of a citation, then the giving and approval of the appeal bond on the last day of the two years allowed for taking an appeal by Code 1892, § 2752, will also perfect the appeal, even though the citation be issued afterwards, or the transcript be afterwards made up. To say otherwise would be to hold that the appeal bond must be given for a time sufficiently prior to the expiration of the two years period to allow the clerk to make up the transcript and for summons and alias summons to be issued until service should be had upon the appellee; and if appellee should not be found within the two years from date of rendition of the decree appealed from, all the acts of the appellant to perfect his appeal would go for naught.

It is true that the case of Chambliss v. Woods, 84 Miss 209 (S.C. 36 So. 246), might seem, from the syllabus and from the statement of the case, to hold that the transcript must be filed and citation served, even after an appeal bond is given and approved, but such a view of this case is unsupported either by reason or by the language of the statutes relating to appeals to the supreme court, and would tend to place a requirement upon the right of appeal which is not contained in the statutes. If this court intended to hold that way in the Chambliss case, it will never have a better chance of righting itself than now. Moreover, the Chambliss case dealt with a...