Houston v. Witherspoon

• Decision Date: 19 January 1891
• Citation: 8 So. 515,68 Miss. 188
• Court: Mississippi Supreme Court
• Parties: J. J. HOUSTON ET AL. v. C. V. WITHERSPOON

8 So. 515

68 Miss. 188

J. J. HOUSTON ET AL. v. C. V. WITHERSPOON

Supreme Court of Mississippi

January 19, 1891

MOTION in supreme court.

Judgment was rendered in the circuit court of Lafayette county against appellants, J. J. Houston et al., in favor of appellee on the 10th day of April, 1889. On June 4, 1889, the parties perfected an appeal to the supreme court by filing a petition and giving bond, without supersedeas. Summons on this appeal returnable to the October term, 1889, was served the next day on the attorneys of record of the appellee. No steps were taken in the supreme court until December 20, 1890, when the transcript of the record was filed and the appearance of appellee was entered. After that, on January 7, 1891 appellee made a motion to dismiss the appeal because of the delay of the appellants in filing the transcript after the appeal had been taken.

Motion overruled.

A. H Whitfield, for motion.

The court has expressly decided the point raised in this motion in the case of McFatter v. The State, MSS. Op. No. 5644. The case now presented is stronger than that case. That was a criminal case and involved the liberty of a citizen while this is only a civil case.

Edward Mayes, contra.

OPINION

CAMPBELL, J.

In McFatter v. The State, April term, 1888, of this court, the record shows that McFatter was convicted and sentenced to fine and imprisonment for a misdemeanor, on June 1, 1885, and immediately perfected an appeal to this court and gave bond for his appearance to answer the charge, after the decision of this court, as provided by law, and, not prosecuting his appeal, permitted the matter to stand as it was until December, 1887, when a transcript of the record was filed in this court. As the convict had obtained a stay of the judgment by his appeal and bond, and delayed to prosecute his appeal, or make any effort in that direction, until the expiration of a greater length of time than required to bar an appeal, he was not permitted to prosecute his appeal, and it was dismissed. The case now before us is not like that cited, except that considerable delay occurred after the appeal was taken, and before the transcript was filed here. But not long enough for an appeal, and in this case citation was served on the appellee, who did not avail of his right to apply to have the case docketed and dismissed, and will be held to have acquiesced in the delay. In criminal cases...