Hyde Const. Co. v. Highway Materials Co.
| Decision Date | 13 April 1964 |
| Docket Number | No. 42814,42814 |
| Citation | 162 So.2d 856,248 Miss. 564 |
| Parties | HYDE CONSTRUCTION CO., Inc., et al. v. HIGHWAY MATERIALS COMPANY. |
| Court | Mississippi Supreme Court |
Watkins & Eager and William E. Suddath, Jr., Jackson, for appellant.
Overstreet, Kuykendall, Perry & Phillips; Green, Green & Chency, Tighe & Tighe, Jackson, for appellee.
An appeal was taken in two causes of action which had been tried upon the same record in the Circuit Court of Hinds County, Mississippi. The purpose of the appeal, and the sole assignment of error, was that the lower court erred in allowing a ten percent attorney's fee and $500 suit fee. When the case was examined on appeal, it was discovered that two of the judgments complained of had been entered in vacation at a time when the court was without authority to hear the matter, with the exception of one order, or orders, which had been entered at the next regular term. This Court reversed the judgments entered in vacation, and in our order of reversal the Court said: '* * * It is further ordered and adjudged that the appellants, Hyde Construction Company, United States Fidelity & Guaranty Company, and the Travelers Indemnity Company, surety and all appellees and cross-appellants, with the exception of Dan Bottrell & Company, do pay the costs of this appeal to be taxed, for which let proper process issue.'
This Court did not pass upon the assignment of errors in this cause since we did not have jurisdiction of the action on appeal. The appeal was therefore dismissed.
Section 1579, Miss.Code 1942, Rec., is as follows: 'In all civil actions, the party in whose favor judgment shall be given, and in case of nonsuit, dismission or discontinuance, the defendant shall be entitled to full costs, except when it may be otherwise directed by law; and the law of costs shall not be interpreted as penal.'
We are of the opinion and so hold that, since the appeal was dismissed, the party who caused the premature appeal should be required to pay the costs on appeal. See Aetna Life Ins. Company v. Thomas, 166 Miss. 53, 144 So. 50, 146 So. 134.
The appellants argue, however, that the motion to retax the costs is filed too late. They point out that the order of this Court is dated December 20, 1963, and that the appellees took no exception to the order fixing the costs due, although the cost bill was mailed out to the interested parties by the Clerk of the Court. It is also pointed out by the appellants that the claim of Highway Materials Company and Knowles Materials Company were...
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Griffin v. State, 07-KA-59406
...by either the Constitution or by statute. In Hyde Const. Co. v. Highway Materials Co., 248 Miss. 564, 159 So.2d 170 (1963), corrected 162 So.2d 856, this Court construed what are currently Miss.Code Ann. Sec. 11-1-7, 11-7-131, --133, and held that Miss.Code Ann. Sec. 11-1-7 provided that ca......
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...so held from the early history of Mississippi. Hyde Construction Company v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170, (162 So.2d 856) (1963); George v. Standard Oil Company of Kentucky, 239 Miss. 712, 124 So.2d 858 (1960); National Casualty Company et al. v. Calhoun, 219 Miss......
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McDaniel Bros. Const. Co. v. Jordy
...regular term of the court? In the case of Hyde Construction Company, Inc. v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170, 162 So.2d 856 (1963), certain suits was joined together and default judgments were entered against Hyde Construction Company and motions were made by appella......