Cassidy v. Central Lumber Co.

Decision Date05 October 1953
Docket NumberNo. 38846,38846
Citation219 Miss. 96,67 So.2d 266
PartiesCASSIDY et al. v. CENTRAL LUMBER CO. et al.
CourtMississippi Supreme Court

Wright, Overstreet & Kuykendall, Jackson, Cowart & Hewitt, Meadville, for appellants.

Phillips & Carr, Brookhaven, Brandon, Brandon, Hornsby & Handy, Natchez, Lamar Easterling, Jackson, for appellees.

McGEHEE, Chief Justice.

The final decree appealed from in the above styled cause was rendered by the Chancery Court of Franklin County on March 20, 1952. The appeal was not taken prior to the adjournment of the court term and it was therefore necessary for the appellants to have the appellees summoned to answer the appeal to the Supreme Court. This was not done and no appearance was entered by the appellees except that which resulted from their filing of the motion to dismiss the appeal on September 8, 1953.

The case was set for hearing on September 21, 1953, and the appellants filed their assignment of error and brief on August 24, 1953, which was twenty-eight days prior to the date set for the hearing of the cause, instead of thirty days prior thereto as required by the rules of this Court, but it appears from an affidavit of the attorney who prepared and filed the brief that this short delay was due to a death in his family and which was unknown to the attorneys for the appellees at the time they complained of the delay in the filing of the appellants' brief, and they no longer press this ground in support of the motion to dismiss the appeal.

The final decree appealed from having been rendered on March 20, 1952, the appellants failed to file and have approved their appeal bond until September 19, 1952, one day prior to the expiration of the six month period allowed therefor. Under Sections 1942 and 1955, Code of 1942, the return days for civil appeals are the Second Monday of September and the First Monday of March, but additional return days are provided for by Rule 8 of this Court and they are fixed as the First Mondays of January, May and July. Therefore, the return day of this appeal was the First Monday of January 1953 since no part of the record on appeal was filed here until December 4, 1952. On that date, Volumes I and II of the record were filed, the first of which consisted of the reporter's notes, copy of the pleadings, orders and decrees, and the second consisted of only the transcript of the testimony. Some of the original exhibits which consisted of original documents and photostatic copies of documents were filed along with Volumes I and II of the record. Volume III of the record containing these and numerous other exhibits introduced at the trial was not filed in this Court until August 24, 1953, the date on which the appellants filed their assignment of error and brief. In other words, four return days of the appeal--the First Monday of January, the First Monday of March, the First Monday of May, and the First Monday of July--intervened before Volume III of the record was filed here.

It appears from the affidavit of the clerk of the chancery court from which the appeal was taken that he first entered upon the duties of such office on the First Monday in January 1952 and that he was not advised until after the first return day of the appeal had passed that it was his duty to copy the exhibits referred to in the court reporter's notes. The suit was one brought by the appellants to confirm title to a tract of land, and numerous entries on the assessment roll and other data relating to the assessment of the land over a period of more than fifty years had been introduced in evidence as indicated by the court reporter's notes. It further appears that the local courthouse was undergoing repairs and that 'All the books in the record room had been piled and packed into other and smaller rooms. The small vault room where the assessment roll and tax receipt books were kept were piled high with other books, store tables, benches, book...

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2 cases
  • Americrete, Inc. v. WEST ALA. LIME CO., INC., 1998-CA-01284-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 6 de abril de 2000
    ...record was complete. Such is a duty charged to the Appellant. In re V.R., 725 So.2d 241, 245 (Miss.1998); Cassidy v. Central Lumber Co., 219 Miss. 96, 114-15, 67 So.2d 266, 268 (1953). ¶ 28. Additionally, the majority claims that the granting of attorney fees to the plaintiff's attorney was......
  • Cassidy v. Central Lumber Co., 38846
    • United States
    • United States State Supreme Court of Mississippi
    • 7 de dezembro de 1953

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