Hicks Mercantile Co. v. Musgrove

• Decision Date: 15 February 1915
• Docket Number: 18041
• Citation: 67 So. 213,108 Miss. 776
• Court: Mississippi Supreme Court
• Parties: HICKS MERCHANTILE CO. v. MUSGROVE

67 So. 213

108 Miss. 776

HICKS MERCHANTILE CO. v. MUSGROVE

No. 18041

Supreme Court of Mississippi

February 15, 1915

APPEAL from the circuit court of Jones county. HON. P. B. JOHNSON Judge.

Suit by the Hicks Merchantile Company against John Musgrove. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Motion overruled, and certiorari awarded.

Halsell & Welch, for the motion.

D. B Cooley, opposed.

OPINION

SMITH, C. J.

This is a motion to docket and dismiss for the reason that the record of the cause has not been filed in this court. The judgment appealed from was rendered on the 14th day of March, and the appeal was perfected by the filing of an appeal bond on the 13th day of May following. It appears that the delay in filing this record was caused by reason of the fact that the stenographer has not filed his transcript of the evidence.

The day fixed by order of this court under section 4206 for the beginning of the call of the docket of the district from which this cause comes at the March term, 1914, was Monday the 1st day of June. Consequently, as more than ten days intervened between that date and the filing of the appeal bond, the cause was then returnable to this court under sections 73, 4902, and 4906 of the Code. Childs v. Rowell, 58 Miss. 512. The effect of these sections of the Code, however, when construed in connection with chapter 111, Laws 1910, which must necessarily be done, is this: That when the return day of a cause arrives, and the stenographer's transcript of the evidence has not been filed and dealt with as provided in chapter 111, Laws 1910, and the time within which this can be done has not expired, the clerk of the trial court is relieved from filing the record in this court on the return day thereof, but must do so on or before the next return day of the district from which the cause comes. Y. & M. V. R. R. Co. v. McCarley, 106 Miss. 92, 63 So. 335.

The return day of the district from which this cause comes, next following the 1st day of June, 1914, was the third Monday in January, 1915; so that it follows from the foregoing views that the clerk of the court below was not in default in not filing this record in this court until after this last-mentioned date.

The failure to file the record on or before that date, however has not operated to the material prejudice of appellee. A writ of certiorari...