Avent v. Markette
| Decision Date | 25 October 1915 |
| Docket Number | 18353 |
| Citation | 109 Miss. 835,69 So. 705 |
| Court | Mississippi Supreme Court |
| Parties | AVENT ET AL v. MARKETTE ET AL |
APPEAL from the chancery court of Lafayette county. HON. J. G MCGOWEN, Chancellor.
Proceeding by B. T. Markette and others for the establishment of a drainage district. From a decree of the chancery court affirming the judgment of the county board of drainage commissioners, establishing the district, T. W. Avent and others appeal.
The facts are fully stated in the opinion of the court.
Motion overruled.
W. P Shinault, for the motion.
Geroge Butler, opposed.
The appeal in this case is from a decree of the chancery court of Lafayette county, affirming the judgment of the county board of drainage commissioners in establishing the Yoknapatawpha drainage district. The proceedings for the organization of this district were had under and by virtue of chapter 197 Laws of 1912. The record discloses an appeal bond executed by T. W. Avent, W. P. Anderson, W. L. Eskridge, H. E. Denton, J. W. Lancaster, M. P. Eskridge, J. M. Mooney, B. S. Mooney, I. T. McCain, I. L. Cain, Clyde Lynch, J. C. Tarver, Mrs. Alma Matthews, T. W. Mooney as principals, and A. E. Russell, Lee M. Russell, and T. J. Wilson, sureties. The motion to dismiss assigns the following reasons:
"First, that there is no appeal bond in this cause as required by law as is shown by the record in this cause; second, that the document filed herein purporting to be an appeal bond is void, as it constitutes no binding obligations upon the sureties thereon signed as is shown by the record in this cause; third, that the names of five or more of the principals appearing on the purported appeal bond were signed thereto fraudulently by one of the attorneys for appellants herein, as shown by the decree of the court below in annulling said bond as to said parties."
After the appeal bond had been filed and approved by the clerk, it is represented to this court that Mrs. M. P. Eskridge and J. W. Lancaster and the three Mooneys filed their petition before the chancellor, averring that their names had been signed to the bond by counsel without authority, and certain proceedings were had and testimony taken before the chancellor in reference to this petition, asking that the names of petitioners be stricken from the bond. The decree appealed from bears date November 24, 1914, while the petition of certain of the alleged principal obligors, addressed to the chancellor and asking that their names be erased from the appeal bond, was filed in February, 1915, and decree rendered thereon May 27, 1915. The chancellor granted the relief prayed for, and ordered the names of petitioners stricken from the appeal bond. The proceedings had before the chancellor after the appeal was prosecuted and the stenographic copy of the evidence heard on this application were ordered by the chancellor to be incorporated as a part of the record of the appeal to the supreme court. It appears that T. W. Avent signed his own name to the appeal bond, and that the sureties likewise subscribed their names thereto, but that the names of the other principal obligors were signed by their counsel. The motion to dismiss was argued orally, and briefs filed under the rules of the court, and in answer to a question, suggested by the court of its own motion, as to whether an appeal lies from the decree complained of in the court below, and, if so, what statute governs the same, counsel for both parties have filed supplemental briefs.
We are of opinion that an appeal can be prosecuted from the decree complained of, and that the general provisions of the Code govern. Chapter 197, Laws of 1912, provides a complete and independent method for the organization of drainage districts. Any party aggrieved by the organization of the district has the right of appeal expressly conferred by sections 17 and 60 of the act in question. Section 6...
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