Hartford Accident & Indemnity Co. v. N. O. Nelson Mfg. Co.
| Decision Date | 20 March 1933 |
| Docket Number | 30507 |
| Parties | HARTFORD ACCIDENT & INDEMNITY CO. v. N. O. NELSON MFG. CO |
| Court | Mississippi Supreme Court |
APPEAL AND ERROR.
Summons and severance requirement of statute respecting appeal is procedural only, and not jurisdictional, purpose being to prevent splitting of appeals (Code 1930, section 22).
HON. E W. CUTRER, Chancellor.
APPEAL from chancery court of Adams county HON. R. W. CUTRER Chancellor.
Action between Hartford Accident & Indemnity Company and the N. O Nelson Manufacturing Company. From the judgment, the former appeals, and the latter moves to dismiss the appeal. Motion overruled. See, also, 160 Miss. 504, 135 So. 349.
Overruled.
Brandon & Brandon, of Natchez, for appellee, on motion to dismiss.
This appeal has not been properly taken and perfected and the court has no jurisdiction of same, and the appeal is now barred by statute of limitation, because other joint judgment debtors did not join in appeal and there has been no summons and severance had to other joint judgment defendants.
Mississippi Code of 1930, section 2323; Mississippi Code of 1930, section 22; Flournoy, v. Burke et al., 4 How. 337; Henderson v. Wilson, 4 S. & M. 732; Preira et al. v. Silva, 4 S. & M. 735; Thomas v. Wyatt, 9 S. & M. 308; Green et al. v. The Planters Bank, 3 How 43; Tardy et al. v. Rosenstock, 118 Miss. 720, 80 So. 1; United States Fidelity & Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456; Wilkinson v. Love, 149 Miss. 523, 115 So. 707.
This appeal not having been perfected in the manner and within the time provided by the statutes of this state this court is without jurisdiction to entertain the appeal.
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.
Appellee seems to take the position that the six months' statute of limitations for taking appeals controls. Such is not the case. The statute, section 2323, Code of 1930, simply provides that an appeal must be taken within six months by the person so desiring and the filing of the bond satisfies the requirement under numerous decisions of the court.
Farish v. Davis, 124 Miss. 711; Turner v. Weaver, 126 Miss. 496.
Neither is there any rule in this state which requires the court to dismiss the appeal of one party simply because the others have not joined in it or been summoned as provided by section 22, Code of 1930.
Tardy v. Rosenstock, 118 Miss. 720.
The failure to have a summons issued for J. V. and R. T. Burkes within the six months is not jurisdictional. There is no statute in this state so making it.
This is an appeal by one of several parties against whom a decree was rendered in the court below. There has been no summons and severance as required by section 22, Code 1930, and the time within which appeals to the Supreme Court can be taken has expired. The appellee requests that the appeal be dismissed.
The summons and severance requirement of the statute...
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Duckworth v. Allis-Chalmers Mfg. Co., ALLIS-CHALMERS
...in the first instance.' The purpose of these statutes was to prevent the splitting of appeals. Hartford Accident & Indemnity Co. v. N. O. Nelson Mfg. Co., 167 Miss. 63, 146 So. 889 (1933); Tardy v. Rosenstock, 118 Miss. 720, 80 So. 1 (1918). Secs. 1156 and 1158 do not affect the present iss......
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...absence of an entry of appearance or waiver by such appellee. Appellant cites and relies upon the case of Hartford A. & I. Co. v. N. O. Nelson Mfg. Co., 167 Miss. 63, 146 So. 889. In that case, however, the Court was construing Section 1156 of the Code of 1942 providing that where one or mo......
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