Beasley v. Cottrell

Decision Date14 December 1908
Citation47 So. 662,94 Miss. 253
CourtMississippi Supreme Court
PartiesADOLPHUS A. BEASLEY v. SOPHIA A. COTTRELL

October 1908

FROM the chancery court of Clay county, HON. JOHN QUITMAN ROBBINS Chancellor.

Mrs Cottrell, appellee, was complainant in the court below Beasley, appellant, was defendant there. From a final decree in complainant's favor defendant appealed to the supreme court.

The final decree in favor of complainant, Mrs. Cottrell, was rendered May 16, 1906. Bond for appeal was filed in the court below May 16, 1908, but a citation for appellee was not issued until November 14, 1908, nor was the transcript of the record received by the clerk of the supreme court until November 19, 1908.

Appellee moved a dismissal of the appeal.

Motion sustained and appeal dismissed.

John G Millsaps, for the motion.

The motion to dismiss must be sustained. Code 1906, § 3112, requires that the appeal from the judgment or decree complained of must be brought within two years' time. The appeal bond was filed one day too late, as it should have been filed on May 15 instead of May 16, 1908, to come within the two years' period. But aside from this, the bond alone was filed May 16, 1908, no citation for the appellee being even issued until November 14, 1908. Nor was the transcript of the record of the court below sent to this court until some days later.

This court has held that the mere filing of the appeal bond within the two years is not sufficient. Chambliss v. Wood, 84 Miss. 209, 36 So. 246, hence the motion to dismiss should be sustained and the appeal dismissed.

Leftwich & Tubb, contra.

The motion of appellee to dimiss the appeal is dependent upon the construction of Code 1906, § 3112, providing that "appeals to the supreme court shall be taken within two years next after the rendition of the judgment or decree complained of." The decree, from which appeal is sought, was rendered May 16, 1906, hence the appellant had all of May 16, 1908, wherein to file appeal bond; because the two years' period did not begin to run until May 17, 1906. Hence the appeal was taken in time. See Code 1906, § 1606, touching the computation of time.

Certificate of the clerk of the court below is attached to our brief showing that citation was not issued and served on the day the appeal bond was filed, for the reason that he had recently become an incumbent of the position, this being the first appellate...

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4 cases
  • Hartford Accident & Indemnity Co. v. N. O. Nelson Mfg. Co.
    • United States
    • Mississippi Supreme Court
    • 20 March 1933
    ... ... Turner ... v. Simmons, 99 Miss. 28, 54 So. 658; Williams v. Meridian ... Light & Ry. Co., 114 Miss. 73, 75 So. 59; Beasley v ... Cottrel, 94 Miss. 253, 47 So. 662 ... Wells, ... Jones, Wells & Lipscomb, of Jackson, for appellant, on motion ... to dismiss ... ...
  • Cassidy v. Central Lumber Co.
    • United States
    • Mississippi Supreme Court
    • 5 October 1953
    ...188, 8 So. 515; Chambliss v. Wood, 84 Miss. 209, 36 So. 246; Adams Lumber Company v. Stevenson, 89 Miss. 678, 42 So. 796; Beasley v. Cottrell, 94 Miss. 253, 47 So. 662; McAllister v. Richardson, 101 Miss. 132, 57 So. 547; Yazoo & M. V. Ry. Co. v. McCarley, 106 Miss. 92, 63 So. 335; Cobb v. ......
  • McAllister v. Richardson
    • United States
    • Mississippi Supreme Court
    • 26 February 1912
    ... ... Afterwards, on the 25th day of ... November, 1911, the record was filed with the clerk of this ... The ... case of Beasley v. Cottrell, 94 Miss. 253, ... 47 So. 662, seems to hold that the filing of an appeal bond ... does not stop the running of the statute limiting ... ...
  • Farrish v. Davis
    • United States
    • Mississippi Supreme Court
    • 3 January 1921
    ...the plea of the statute of limitations filed by appellee. Counsel refers the court to Chambliss v. Wood, 84 Miss. 209, and Beasley v. Cottrell, 94 Miss. 253. The of the court in the latter case, Beasley v. Cottrell, was based entirely upon the case of Chambliss v. Wood, supra, and the court......

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