Edwards v. Peresich, 39299

• Decision Date: 18 October 1954
• Docket Number: No. 39299,39299
• Citation: 221 Miss. 788,74 So.2d 844
• Parties: Emelia H. EDWARDS v. Giles H. PERESICH et al.
• Court: Mississippi Supreme Court

Page 844

74 So.2d 844

221 Miss. 788

Emelia H. EDWARDS v. Giles H. PERESICH et al.

No. 39299.

Supreme Court of Mississippi.

Oct. 18, 1954.

Amy Burkett, Ocean Springs, for appellant.

O. K. Wiesenburg, Pascagoula, for appellees.

ETHRIDGE, Justice.

Appellees, Giles H. Peresich and others, have moved to strike the court reporter's transcript and to dismiss this appeal, on the ground that notice to the court reporter was not given within ten days after the adjournment of court following rendition of the final decree, as required by Code of 1942, Sec. 1640, and for the reason that the appeal was not taken within six months after the rendition of the final decree of September 25, 1952, as required by Code Sec. 753. The issue involved is whether the filing of a petition for rehearing during the term of chancery court at which the final decree was rendered, and the continuance by the court of such petition for rehearing to vacation or the next term, suspend these statutes of limitation until the court has executed an order overruling the petition for rehearing.

The case was tried at the September 1952 term of the Chancery Court of Jackson County. The final decree was executed and filed on September 25, 1952, adjudicating title to the lands in the defendants and cross-complainants, who are appellees and movants here. On the last day of that term of court, October 3, 1952, complainants and cross-defendants, appellants here, filed what they designated a 'motion for a new trial'. This pleading moved the court to set aside the decree and to grant a new trial, and assigned seven reasons therefor, including that the decree was contrary to the pleadings and the evidence, that the description of the property in the decree was at variance with the description claimed by cross-complainants, that the court erred in excluding certain evidence offered by complainants and cross-defendants, and that the court erred in refusing to grant complainant and cross-defendant time to obtain a survey to rebut evidence offered by defendants and cross-complainants showing a description of the property at variance with the description claimed by the latter parties. It will be noted that this 'motion for a new trial' did not set up any newly discovered evidence or assert any fraud in the obtaining of the decree, but was directed solely to matters already in the record, except as to the last item.

On the same day, October 3, which was the last day of that term of court, the chancellor signed an order, adjudicating that the cause had come on to be heard on that motion, and that it appeared that the attorney for defendants and cross-complainants had not been served with a copy of the motion and could not be contacted, and that it was therefore ordered that 'said cause be continued for hearing upon said motion for a new trial to such time and place in term time or vacation as may be convenient to counsel for the respective parties and the court'. The attorney for defendants was served with a copy of this motion on the next day, October 4, and on October 7 the attorney for defendants, appellees and movants here, wrote complainant's attorney that he would appear before the chancellor at 10 o'clock on the next Saturday to urge him to overrule this motion, and that he would not agree to let it go over until December. On the next Saturday, October 11, attorneys for both sides appeared before the chancellor, but because of other business, the chancellor was not able to then consider the motion. On October 21, defendants' attorney wrote the chancellor, and advised him that, after studying the authorities, he did not think that this motion was a proper pleading, and that he would like the record to show that he would not consent to any hearing of it, for the reason that the court was without jurisdiction to consider it. On October 29, in vacation, the chancellor executed a decree overruling complainant's 'motion for a new trial'. It recited that defendants had refused to appear or participate in a hearing on the motion, and that defendants took exception to the court's decree overruling it.

Complainants and cross-defendants, appellants here, thereafter gave notice to the court reporter to transcribe his notes on October 30, 1952, which was twenty-six days after the adjournment of the September term, and one day after the decree of October 29 overuling the motion for 'new trial'. On April 25, 1953, complainants and cross-defendants filed an appeal bond. This was seven months after the rendition of the final decree of September 25, 1952, and about four days less than six months after the date of the decree of October 29, 1952, which overruled complainant's motion for a 'new trial'.

On this motion to strike the reporter's transcript and to dismiss the appeal, movants, appellees, contend that the 10-day limitation period for notice to the court reporter and the six-months limitation period for filing the appeal bond were not suspended by the filing of the petition for rehearing. Movants concede that a petition for rehearing is a permissible practice in chancery courts, but they first say that the so-called 'motion for a new trial' did not comply with the requirements for a petition for rehearing, since it was neither supported by affidavit nor by a verified petition for rehearing.

Griffith, Mississippi Chancery Practice (2d ed. 1950), Sec. 632, states: 'Until the final adjournment of the term at which a final decree has been entered, the court has entire control of all its orders and decrees and may modify or vacate any one or all of them either on its own motion or on the motion or petition of any party thereto. Ordinarily, when a court of its own motion during term time alters or vacates an order or decree, the action of the court in doing so is based on matters already a part of the record in the cause. It follows, therefore, that it is not necessary to file any formal motion or petition for a rehearing during term, if a party to the cause desires to bring to the attention of the court, for instance, some matter of evidence already in the record, . . .'

The motion filed in the chancery court, although incorrectly designated as a motion for a new trial, is the substantial equivalent of a petition for rehearing in equity. Moreover, it was based on matters already a part of the record, with one exception, and it was not necessary, although desirable, that such petition be sworn to by the attorney for complainant making such motion. There is no statute or rule of court in this State concerning the form of a petition for rehearing in equity. 30 C.J.S., Equity, Sec. 628, p. 1036.

Movants further argue that a petition for rehearing must be disposed of at the same term at which the final decree is rendered. Code of 1942, Sec. 1228, as amended, provides in part: 'A chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement by him at a term of court; and by consent of the parties or of their solicitors of record, he may try causes and deliver opinions and make and sign decrees therein in vacation; * * *.' Discussing this statute, Griffith, Mississippi Chancery Practice, Sec. 594, p. 629, says: 'If the chancellor desires further time to consider of the case, or to further study the authorities, or the opportunity to have the notes of the testimony read to him on close questions of fact he may take the case under advisement, being particular to retain jurisdiction of it by the necessary order on the minutes to that effect; and having so ordered he may deliver his opinion and sign the decree or any appropriate orders or decrees therein during vacation, * * *'

The decree of October 3, the last day of the term of court, was a proper exercise of the court's was a proper exercise to take the petition under advisement to determine whether it was sufficient to entitle appellant to a rehearing. In fact, the chancellor was entirely correct in doing so, because the attorney for defendants had not then received notice of it. The decree in question simply overruled the petition. 30 C.J.S. Equity, Sec. 625, pp. 1028, 1029, 1033.

Hoggatt's Adm'r v. Hunt, 1826, 1 Walk. 216, 1 Miss. 216, states that whether to grant a rehearing is in the sound discretion of the chancellor. In Planters Bank v. Neely, 1843, 7 How. 80, 8 Miss. 80, 95, a petition for rehearing was filed at the next term of court following the term at which the final decree was entrolled. The Court said: 'As a general rule a rehearing cannot be granted after the term has passed in which the decree was pronounced. A bill of review is then the only remedy.' However, this statement is explained in the later case of Foy v. Foy, 25 Miss. 207. There also the petition for rehearing was filed at the next term following the term at which the decree was entered. The Court said: 'Neither can this bill be sustained as a petition for a rehearing. Petitions for rehearing can never be filed after the enrolment of the decree. 3 Daniel, Ch.Prac. 1620. Such was the rule of practice in England. But by a rule of court in this State, the petition for rehearing must be presented within five days after the decree pronounced. Under any circumstances, it is too late to apply for a rehearing after the expiration of the term of the court.' In other words, the petition for rehearing under the general rule must be filed during the term of court at which the decree is rendered. 30 C.J.S., Equity, Sec. 628, p. 1036. Compare Randel v. Yates, 1873, 48 Miss. 685; Handy v. Andrews, 1876, 52 Miss. 626, 633. Since a petition for rehearing can be filed before the end of the term at which the decree was rendered, and the chancellor has power to consider it, we think that if he does not have opportunity to properly evaluate it during that term, he has power under the authorities referred to above to continue the petition for consideration, either in vacation or at the next term, which was done...