Chambliss v. Wood
| Decision Date | 28 March 1904 |
| Citation | 36 So. 246,84 Miss. 209 |
| Court | Mississippi Supreme Court |
| Parties | HARRIET N. CHAMBLISS v. ROBERT L. WOOD |
March, 1904
FROM the circuit court of Winston county HON. GUION Q. HALL, Judge.
Mrs. Chambliss, the appellant, was plaintiff, and Wood, the appellee, was defendant in the court below. From a judgment in defendant's favor, sustaining a demurrer to the declaration and dismissing the suit, the plaintiff sought to appeal to the supreme court.
She executed an appeal bond within two years next after the rendition of the judgment, but failed to have a citation in error served on the appellee or to file a transcript of the record in the supreme court until after the expiration of said time.
The appellee appeared in the supreme court and made a motion to dismiss the appeal because barred by limitation.
Motion sustained.
Alexander & Alexander, for the motion.
There has been no summons on appellee. Even if Houston v. Witherspoon, 68 Miss. 188, be invoked, the answer is that the record was not filed within the two years allowed for an appeal. That period expired July, 1903.The transcript was filed September, 1903.
J. E. Rives, Contra.
It was held by this court that where a party against whom a judgment was rendered perfects an appeal, summons thereon being served, the appellee may move to docket and dismiss, if the transcript is not seasonably filed. But if he fails in this, a motion to dismiss for delay in bringing up the record will not prevail, if it is filed within the two years allowed for an appeal. Houston v. Witherspoon, 68 Miss. 188.
The case of Houston v. Witherspoon, 68 Miss. 188 (8 So. 515), is not authority here for two reasons: First--The decree in this case was rendered in July, 1901, and the appeal was consequently barred in July, 1903. The transcript was not filed in this court until September, 1903, more than two years after the rendition of the decree. Second--No citation was served on the appellee in this case, as was done in Houston v. Witherspoon . It was said in that case on this point: "In this case citation was served on the appellee, who did not avail of his right to apply to have the case docketed and dismissed, and will be held to have acquiesced in the delay." The appellee here cannot be held to have acquiesced in the delay, since no citation was served upon him.
The motion is sustained.
To continue reading
Request your trial
-
Great Atlantic & Pacific Tea Co. v. Majure
...is perfected only on the filing and approval of the bond, where a bond is required. Adams Lbr. Co. v. Stevenson, 89 Miss. 679; Chambliss v. Wood, 84 Miss. 209; McAllister Richardson, 101 Miss. 132; Farish v. Davis, 124 Miss. 711; Wofford v. Williams, 109 Miss. 847. The motion for a new tria......
-
Cassidy v. Central Lumber Co.
...of the appeal until he has been served with a notice in regard thereto. Houston v. Witherspoon, 68 Miss. 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. Ric......
-
Adams Lumber Co. v. Stevenson
...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 36 So. 246). Theodore McKnight, against the motion. Code 1892, § 2752, merely provides that an appeal shall be taken within two years next ......
-
McAllister v. Richardson
...of what the court held in Chambliss v. Wood, caused by the imperfect reports of that case. What the court in fact did hold in Chambliss v. Wood was that "the appeal is perfected on the filing of bond, which stops the running of the statute." The appeal in the present case, therefore, was no......