Dapsco, Inc. v. Walters
| Decision Date | 11 December 1961 |
| Docket Number | No. 42205,42205 |
| Citation | 243 Miss. 427,135 So.2d 850 |
| Parties | DAPSCO, INC. et al. v. Mrs. Martha Nell Upchurch WALTERS. |
| Court | Mississippi Supreme Court |
Morse & Morse, Gulfport, for appellants.
Melvin, Melvin & Melvin, Laurel, for appellee.
This is a workmen's compensation case that comes to us from the Circuit Court of the Second Judicial District of Jasper County.
Appellee has filed a motion to dismiss the appeal because not taken within the time allowed by law, and also a motion to assess statutory penalties, interest and damages. This motion seeks, in addition to five percent damages and six percent interest, to recover the twenty percent provided by Section 13(f) of the Compensation Act, Section 6998-19(f), Code of 1942.
The appeal to the Circuit Court of Jasper County was heard by the judge of that court in vacation at Raleigh, Smith County, Mississippi, on May 12, 1961. Appeal bond was filed August 11, 1961, ninety-one days after the date of the order of the circuit judge.
Attorneys for the movant do not rely upon the verity of the circuit court record, but with commendable candor and frankness admit by affidavit filed herein that the hearing at Raleigh, Mississippi, was held on Friday, May 12, 1961, and on Monday, May 15, 1961, the attorney for appellee prepared an order in accordance with the oral ruling of the circuit judge made on May 12. The affidavit also shows that this order prepared on May 15, 1961, was not the one that was entered. The one that was entered was prepared on June 2 and forwarded directly to the circuit judge, and the date, May 12, 1961, was typed in the order so mailed on June 2.
The question is therefore presented whether the order was rendered on May 12 by the oral announcement of the judge so as to begin on that date the running of the ninety days permitted for appeal by Section 753, Code of 1942. In other words, was the order 'rendered' on May 12, or was it 'rendered' when signed by the judge and lodged with the clerk?
It seems to be settled that in a court of law when the court is in regular session a judgment is rendered when the judge orally announces same from the bench. Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Clark v. Duke, 59 Miss. 575; Welch v. Kroger Grocery Co. et al., 180 Miss. 89, 177 So. 41. The basis of these rulings is that court is being held during a term at the regular place of court, that all of the officers including the clerk are present, that the judge announces his ruling orally and the entry on the minutes is a ministerial act performed by the clerk.
In the present case, the hearing was not held in the county where the case was pending, and, so far as here shown, the clerk was not present to hear the judge's announcement of his conclusions.
Section 1523, Miss.Code of 1942, as amended, has reference to the actions of the circuit judge in vacation...
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Jackson v. Schwartz
...in vacation is not rendered until it is signed by the judge and lodged with the clerk for entry on the minutes. Dapsco, Inc. v. Walters, 243 Miss. 427, 439, 135 So.2d 850 (1962). Dapsco based the vacation date of rendition of judgment in part on the provisions of Mississippi Code 1942 Annot......
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Banks v. Banks, 57083
...that date ... Though previously a circuit judge could render a binding oral judgment at a trial's conclusion, Dapsco, Inc. v. Walters, 243 Miss. 427, 440, 135 So.2d 850 (1961), Welch v. Kroger Grocery Co., 180 Miss. 89, 95, 177 So. 41, 42 (1937), the Court later made the rule uniform, findi......
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Dapsco, Inc. v. Upchurch's Dependent
... ... and Maryland Casualty Company, and could sign and execute a contract of release and endorse checks. On the 29th of February 1960, the chancery court granted an order removing the disability of minority of Mrs. Martha N. Williams Upchurch Walters (being one and the same person as Mrs. Martha N. Williams Upchurch) ... The employer and carrier filed a motion with the Commission asking that the original order of January 26, 1960, above set out, be reopened, upon the grounds that the order was secured by fraud, there was a ... ...