Lovett v. Harrison

• Decision Date: 16 November 1931
• Docket Number: 29557
• Citation: 162 Miss. 814,137 So. 471
• Court: Mississippi Supreme Court
• Parties: LOVETT v. HARRISON

137 So. 471

162 Miss. 814

LOVETT v. HARRISON

No. 29557

Supreme Court of Mississippi

November 16, 1931

Division A

1. APPEAL AND ERROR.

Motion to dismiss defective appeal bond will be overruled and request to substitute new bond granted (Code 1930, section 3375).

2. APPEAL AND ERROR.

Leave may be granted to perfect defective appeal bond after expiration of time allowed for taking appeal (Code 1930, section 3375).

3. APPEAL AND ERROR.

Appellant should apply for certiorari directing clerk to send up record, on clerk's failure to certify record within time prescribed by law (Code 1930, sections 3358, 3371).

4. APPEAL AND ERROR.

Failure of appellant to apply for certiorari to direct clerk to certify transcript of record, held not to warrant dismissal of appeal, where there was little delay in reviewing court.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Smith county HON. W. L. CRANFORD, Judge.

Action between R. A. Lovett and Hattie Harrison. From the judgment, the former appeals. On motion to dismiss the appeal. Motion overruled with leave to file new appeal bond.

So ordered.

O. R. Singleton, of Forest, for appellant.

J. D. Martin, of Memphis, Tenn., and A. M. Edwards, of Mendenhall, for appellee.

No briefs found on points decided by the court in this opinion.

OPINION

Smith, C. J.

A motion has been filed to dismiss this appeal for two reasons: First, the transcript of the record was not filed until after the return day thereof; and, second, the appeal bond is defective.

The appeal bond is defective both as to the competency of the sureties thereon and the amount of the penalty thereof, and a motion to dismiss the appeal for that reason has been met by a request for leave to substitute a new and proper bond. Section 3375, Code of 1930, provides that, "an appeal to the supreme court shall not be dismissed for want of jurisdiction because of a defect . . . in the bond . . . but all defects and irregularities may be cured by amendment." The motion to dismiss therefore must be overruled, and the request to substitute a new bond granted. Hudson v. Gray, 58 Miss. 589; State v. Coahoma County, 64 Miss. 358, 1 So. 501; Cleveland State Bank v. Cotton Exchange, 118 Miss. 768, 79 So. 810; Wills v. Howie, 109 Miss. 568, 68 So. 780; Thorsen v. I. C. R. R. Co., 112 Miss. 139 72 So. 879.

The original appeal bond was filed and approved within the time allowed for the taking of an appeal, which time has now elapsed. This last fact is of no consequence, however, for the statute does not limit the right to perfect, a defective appeal bond to the time within which appeals must be taken.

The judgment appealed from was rendered on the 19th day of December, 1930, the appeal bond was filed on the 11th day of January, 1931, and the stenographer's transcript of the evidence was filed on the 13th day of February, 1931, within the time allowed therefor. Under sections 55, 3358, and 3371 Code of 1930, it became the duty of the clerk of the court below to certify the transcript of the record to the clerk of the supreme court on or before the first day of March, 1931. Hicks Mercantile Co. v. Musgrove, 108 Miss. 776, 67 So. 213. Instead of doing this, lie filed the record a few days before the first Monday of May, 1931, which was the next return day, under the rules adopted by this court pursuant to section 3371, Code of 4930. The appellant...