Home Ins. Co. v. Watts, 40336
| Decision Date | 08 April 1957 |
| Docket Number | No. 40336,40336 |
| Citation | 93 So.2d 848,229 Miss. 735 |
| Court | Mississippi Supreme Court |
| Parties | The HOME INSURANCE COMPANY v. Turner WATTS & Universal C.I.T. Credit Corporation. |
Tate Thigpen, Picayune, Watkins & Eager, Jackson, for appellant.
More & Morse, Poplarville, Gray & Montague, Hattiesburg, for appellees.
On January 7, 1957, judgment was entered by this Court in this cause reversing the judgment of the court below and dismissing the cause without prejudice, and further adjudging that the appellant have and recover of and from the appellees all of the costs of this appeal to be taxed. A suggestion of error filed by the appellee, Turner Watts, on January 22, 1957, was overruled on January 28, 1957. On February 2, 1957, the appellee, Universal C.I.T. Credit Corporation, filed a motion to retax the costs, averring that it was merely a nominal party to the litigation and had not participated in the appeal or made any appearance therein, and praying that the judgment entered be modified, amended and reformed so as to eliminate any liability or responsibility of the said Universal C.I.T. Credit Corporation for the costs of this appeal. This motion was overruled on February 25, 1957. The appellee, Universal C.I.T. Credit Corporation, then filed on February 27, 1957, what it submits as a suggestion of error to the action of the Court in overruling its said motion. In this latter suggestion of error, the Corporation raised for the first time a question of jurisdiction, contending that the Court was without jurisdiction to render a judgment against it for the costs for the reason that no summons to answer the appeal had been issued and served upon it as required by Sections 1189 and 1186 of the Mississippi Code of 1942. The Court called upon the other parties for a response to this suggestion of error and only the appellant, The Home Insurance Company, responded.
The appellant contends in its response (1) that under the authority of Inman v. Travelers' Insurance Co., 154 Miss. 611, 122 So. 537, the motion to retax costs should be deemed a suggestion of error and that the suggestion of error now before the court is a second suggestion of error and cannot be entertained under Rule 14(3) of this Court providing that after a suggestion of error has been sustained or overruled by the Court no further suggestion of error shall be filed by any party; (2) that under Rule 16 of this Court no motion once disposed of or dismissed shall again be heard and that the suggestion of error now presented to the Court is an attempt to obtain a rehearing of the motion to retax costs; (3) that the Corporation entered its appearance in the appeal by filing its motion to retax the costs and waived any objection to the jurisdiction of the Court; (4) that the requirements of Sections 1189 and 1186 of the Mississippi Code of 1942 are procedural only and not jurisdictional; and (5) that since the question of jurisdiction was not originally raised by the Corporation in its motion to retax costs, the same cannot now be raised.
We are not unmindful, of course, of the rules of this Court prohibiting the filing of a second suggestion of error and providing that a motion once disposed of will not again be heard. Rule 33 of the Court, however, authorizes us to relax or dispense with the rules to prevent injustice, and we think that it is particularly appropriate to invoke this rule where a question of jurisdiction is involved. Especially is this true since the question of jurisdiction may be raised at any stage of the proceedings, and even by the Court of its own motion. Waits v. Black Bayou Drainage District, 186 Miss. 270, 185 So. 577. Without regard to the procedure by which the question of jurisdiction is now brought to the attention of the Court, we deem it proper to consider that question and pass upon it.
Section 1189 of the Mississippi Code of 1942 provides in part as follows: '* * * and in all civil cases, where the appeal is not perfected during the term of the court at which the judgment or decree complained of is rendered, he [the clerk] shall issue a summons to the opposite party to appear and answer the appeal in the Supreme Court.'
Section 1186 of the Mississippi Code of 1942 provides in part as follows: 'The summons to...
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