Aubour v. Yazoo & Mississippi Valley Railroad Company
| Decision Date | 13 February 1911 |
| Citation | 54 So. 158,96 Miss. 340 |
| Parties | FREDERICK J. AUBOUR v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY |
| Court | Mississippi Supreme Court |
October, 1909
FROM the circuit court of Franklin county, HON. MOYSE H. WILKINSON, Judge.
Aubour, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a (pretended) judgment in defendant's favor the plaintiff appealed to the supreme court.
When the case reached the supreme court appellee moved the court to dismiss the appeal on the ground that the judgment appealed from was rendered neither at a regular nor special term of the court. The facts are stated in the opinion of the court.
Motion sustained and appeal dismissed.
Mayes & Longstreet, for the motion.
Whittington & Dodd, contra.
MOTION TO DISMISS APPEAL.
The appellee makes a motion to dismiss this appeal on the ground that the court was held at an unauthorized time. It appears that at the time the court was held it was not at a general term and no special term had been called. Under the Laws of 1910, page 86, the time for holding the regular term of the circuit court in Franklin county is fixed on the fourth Monday of June. This term of the court is for civil business only, though two other terms of court are held in the county, respectively, on the fourth Monday of April and the third Monday of January. The introduction of the June term into the time for holding court in Franklin county seems to have been made in 1910 for the first time. Doubtless this change was not called to the attention of the learned circuit judge and other officers of the court, and the court convened in Franklin county on the second Monday of June, in place of the fourth Monday. Whereupon, on the fourth day this case was called and heard, resulting in a judgment in favor of appellee.
The court was held at an unauthorized time, and it seems well settled that all proceedings in a court, at a time when the holding of such court is unauthorized by law, and its jurisdiction is not exercised within the time prescribed for the term to be held, is void. See page 728, 11 Cyc. and notes.
Motion sustained and appeal dismissed.
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