Johnson v. Mississippi Power Co.

• Decision Date: 10 June 1940
• Docket Number: 34221
• Citation: 189 Miss. 67,196 So. 642
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. MISSISSIPPI POWER CO

196 So. 642

189 Miss. 67

JOHNSON v. MISSISSIPPI POWER CO

No. 34221

Supreme Court of Mississippi, Division A

June 10, 1940

APPEAL from the circuit court of Hancock county, HON. L. C. CORBAN Judge.

Action by Arthur Johnson against the Mississippi Power Company and one Beningo to recover for personal injuries. From a judgment awarding damages against last named defendant and dismissing the action as to first named defendant, plaintiff appeals. Appeal dismissed.

Appeal dismissed.

Eaton &amp Eaton, of Gulfport, and Wilbourn, Miller & Wilbourn, of Meridian, for appellee on plea in bar of appeal.

It is expressly provided in Section 21, Code 1930, of Mississippi "The time for presenting such petition for an appeal shall be considered the time of taking the appeal, if bond be then given as required."

While the petition for appeal was filed in the lower court October 13, 1939, the affidavit of the clerk attached to this brief and the bond itself, shown in the transcript immediately after page 254, clearly disclose that no bond for any appeal as required by law, was actually filed in the lower court until the 21st day of March, 1940, more than six months after the rendition of the judgment in the lower court.

Under Section 26 of the Code of 1930 of Mississippi, petition for an appeal is not necessary to the validity thereof. The controlling fact as to whether or not appeal has been taken so as to stop the running of Statute of Limitations, is the giving, in the lower court, of the bond as required by law.

Lbr. Co. v. Stevenson, 42 So. 796, 89 Miss. 678; Colanthe v. Downs, 98 Miss. 740, 53 So. 417; Miller v. Phipps, 152 Miss. 437, 119 So. 170; Bank v. Cole, 106 Miss. 496, 64 So. 214; Farrish v. Davis, 124 Miss. 711, 86 So. 713.

In the case of Howell v. Miller, 118 So. 178, 151 Miss. 372, the record on appeal did not disclose that any appeal bond whatever had been given, but did disclose that the costs of the transcript in the lower court had been paid by the appellants; that $ 20 had been deposited with the clerk of the Supreme Court. It was held that the giving of a bond in such cases in the sum of $ 100, as required in the concluding portion of Section 28, Code 1930 of Mississippi, was a necessary condition to the taking of an appeal, and it was dismissed. The case does not appear to have involved the question as to the statute of limitations. It is conclusive, however, that the filing of the $ 100 appeal bond in the court below is necessary.

Applying all the principles of the foregoing cases and statutes to the situation here before the court, we respectfully submit that the appeal is barred under the terms of Section 2323, Code 1930 of Mississippi, by reason of the failure of appellant to file in the lower court the appeal bond required by the statute within six months from the rendition of the judgment in the lower court; and that it should now be dismissed.

Gex & Gex and Evelyn Hunt Conner, all of Bay St. Louis, for appellant on plea in bar of appeal.

Appellee, as we see it, has misconceived the law as to what constitutes the rendition of a final judgment; and for that reason the decisions cited in their brief are inapplicable here.

As shown by the affidavit of the clerk of the circuit court of Hancock County, attached to appellant's replication to the plea in bar, the term at which the case was tried in the lower court ended on September 22, 1939; immediately upon adjournment the stenographer was given notice to transcribe his notes for the purpose of taking an appeal therein, and the appeal was finally perfected on March 21, 1940, within the six months provided by statute for the taking of appeals.

Code of 1930, Secs. 13, 2323, 3361.

Appeals may be taken to this court from an adverse ruling of the circuit court at any date within six months next after the date upon which the judgment rendered by the circuit court becomes final.

State ex rel. Rice, Atty.-General., v. Large, 157 So. 694; Moore v. Montgomery Ward & Co., 156 So. 875.

From the foregoing cases, it is apparent that so long as the time had not elapsed in which a motion for a new trial might be made by any of the parties the judgment rendered by the court was not final and no appeal could have been taken until the 22nd day of September, 1939. Therefore, the appeal was perfected on the 21st day of March, 1940. It was taken within the six months provided by statute and regardless of the fact that notice of the appeal was not served on appellee until April 9th, the perfecting of the appeal by payment of costs and filing of the bond stopped the running of the statute.

Adams Lbr. Co. v. Stevenson, 89 Miss. 687, 42 So. 796; Farrish v. Davis, 124 Miss. 711, 86 So. 713; Turner v. Weaver, 126 Miss. 496, 89 So. 153; Love v. Mayor and Board of Aldermen of Yazoo City, 148 So. 382.

We respectfully submit that the plea in bar should be overruled, and the case should be submitted to the court on its merits.

OPINION

Smith, C. J.

The appellant sued Beningo and the Mississippi Power Company for a personal injury. The jury returned a verdict for the Power Company, but against Beningo; and a judgment thereon awarding the appellant damages against Beningo and dismissing his action as to the Mississippi Power Company was entered on the minutes of the court on the 8th day of September, 1939. The court remained in session until, and adjourned on, the 22nd day of September. The appeal bond was filed and approved on March 21, 1940, more than six months after the entry of the judgment but less than six months after the adjournment of the court.

Section 2323, Code 1930, provides: "Appeals to the Supreme Court shall be taken within six months next after the rendition of the judgment or decree complained of, and not after, saving to persons under a disability of infancy or unsoundness of mind the like period after the disability shall have been removed." An appeal within the meaning of this statute is taken when, but not until, a bond therefor is filed, where such a bond is required, as is the case here.

The appellee, by a plea in bar of the appeal, says that this bond was filed more than six months after the judgment appealed from was rendered. The question presented then is: When was the judgment rendered? In some jurisdictions all judgments are presumed to have been rendered on the first day of the term of the court at which they were rendered; in others, on the last day thereof unless the contrary appears; in still others, on the day on which they were actually pronounced by the court. 34 C. J. 70; 15 R. C. L. 611 et seq. This court is aligned with the third of these classes; for with us "the date of the rendition of a judgment at law is the pronouncement thereof by the court at the conclusion of the trial." Cresswell v. Cresswell, 164 Miss. 871 140 So. 521, 522, 144 So. 41; Clark v. Duke, 59 Miss. 575; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Rayl v. Thurman, 156 Miss. 1, 123 So. 853, 124 So. 432. ...