Mayflower Mills v. Breeland

Decision Date02 October 1933
Docket Number30704
CourtMississippi Supreme Court
PartiesMAYFLOWER MILLS v. BREELAND

Division B

Suggestion Of Error Overruled November 13, 1933.

APPEAL from circuit court of Copiah county HON. E. J. SIMMONS Judge.

Action between Mayflower Mills and A. D. Breeland. From an adverse judgment, Mayflower Mills appeals. On motion to dismiss and to strike the stenographer's notes.

Stenographer's notes stricken, and appeal dismissed.

Stenographer's notes stricken and appeal dismissed.

W. S. Henley, of Hazlehurst, for appellee, on motion.

The case should be dismissed because record not filed within time required by law.

Miller, State Revenue Agent, v. Phipps et al., 119 So. 170; Turner v. Weaver, 89 So. 153, 126, Miss. 496.

The stenographer's notes should be stricken from the record. Notice to the stenographer in this instance was irregular.

If counsel for an aggrieved party desires the notes, he should give the stenographer notice unconditionally.

Section 725, Code of 1930.

The burden of determining when a copy of the notes is desired should be placed upon counsel and not upon stenographer, and a conditional notice, not effective at the time it is given, but contingent upon some future event, which may never happen is not a proper notice, as required by the statute.

The statute is very plain, and requires a notice to the reporter, "of the fact that a copy of the notes is desired." The statute does not permit a notice to the reporter that a copy of the notes may be desired some time in the future, if and when something else happens.

Drew v. Caston, 132 So. 736, 162 Miss. 851; State Highway Dept. v. Haines, 162 Miss. 216.

The transcript should also be stricken for the reason that the court reporter's notes have not been certified to.

Wilkinson v. Love, 111 So. 457.

The appeal is barred by statute of limitations.

Section 2323, Code of 1930.

In this case, the judgment was rendered on the 12th day of November, 1931. That term of court adjourned on December 1, 1931. The bond for the appeal was filed on November 4, 1932, and citation was issued and served on April 4, 1933, and record filed in supreme court on April 7, 1933.

Creswell v. Creswell, 140 So. 522.

In courts of law the date of the rendition of the judgment is the date "when the court signifies its assent to the sentence of the law as the result of proceedings in the case."

Clark v. Duke, 59 Miss. 575, 579; Simpson v. Boykin, 118 Miss. 701, 718, 79 So. 852; Rayl v. Thurman, 124 So. 432; Dickerson v. State, 117 So. 261.

In some jurisdictions the pendency of a motion to vacate and set aside or modify a judgment is held to suspend the operation of the judgment, so that it does not take final effect for the purpose of an appeal or writ of error until the motion has been disposed of. The general rule is however, that the pendency of a motion to vacate or modify a judgment or order does not relieve one from the statutory requirement to appeal within the prescribed time.

3 C. J. 1054; Claude v. Turner (Ark.), 15 S.W.2d 974; Moore v. Henderson (Ark.), 85 S.W. 237; Evans v. St. L. I. M. & S. R. Co. (Ark.), 88 S.W. 994; Chatfield v. Jarratt (Ark.), 158 S.W. 146; Oxford Telephone Mfg. Co. v. Arkansas National Bank (Ark.), 204 S.W. 1140; Dubin v. Montgomery (Ark.), 221 S.W. 885, 223 S.W. 17; Wind v. Prudential Insurance Co. (Ark.), 36 S.W.2d 966; Sheahan v. Kansas City (Kan.), 169 P. 957; Smith v. Lemly (Kan.), 173 P. 275; Buzbee v. Morstorf (Kan.), 182 P. 644; Kamps v. Alexander (Md.), 104 A. 427; Crane v. Becker (Mich.), 225 N.W. 493; Kline v. Murray (Mont.), 257 P. 465; Tucker v. Davidson (Ore.), 156 P. 1037; Oxman v. Baker County (Ore.), 234 P. 799; Keyes v. Bakerville, 170 N.W. 140; Hayden v. City of Sisteon, 171 N.W. 88; McLean v. Merriman, 175 N.W. 878; Martin v. Higginbotham (Tex.), 29 S.W.2d 412; Lacey v. McClure (Tex.), 223 S.W. 872; Wood v. Hill (Tex.), 263 S.W. 631; Mid Texas Oil Co. v. Pan Handle Refining Co., 283 S.W. 572; Stribling v. Riggs (Tex.), 287 S.W. 1103; Minneapolis Threashing Co. v. Fox (Utah), 172 P. 699; Hogenson v. Prohl (Wise.), 208 N.W. 867; Spencer v. Lowenstein (Wyo.), 207 P. 1098; W. Sheep Company v. Pine Dome Oil Co. (Wyo.), 228, Pac. 199.

J. M. Stevens, Jr., of Jackson, and M. S. McNeil, of Hazlehurst, for appellant, on motion.

Appeal will not be dismissed for failure to file record on return day in absence of prejudice to appellee.

J. J. Newman Lumber Co. v. Lucas, 108 Miss. 784, 67 So. 216; Lovette v. Harrison, 162 Miss. 814, 137 So. 471; Y. & M. V. R. R. Co. v. McCarley, 106 Miss. 92, 63 So. 335.

The stenographer's notes should not be stricken and appeal should not be dismissed on account of the notice to stenographer.

Sections 728 and 3375, Code of 1930.

From section 728, Code of 1930, it will be seen that no stenographic transcript, when transcribed by the stenographer in pursuance to notice to do so will be stricken, unless incorrect in some material particular, and then only when not made part of that record as provided by law.

The stenographer was satisfied with the notice given in this case, and filed his notes in pursuance of the notice, even though he failed to observe all the statutory requirements imposed by law.

Since the notes were filed and were certified as being correct, and since appellee points out nothing incorrect in the notes themselves, the motion to strike should be overruled. It is not the duty of the stenographer to copy the exhibits.

Wilkinson v. Love, 111 So. 457; Geiselbreth v. Mississippi Power & Light Co., 147 So. 874; Young v. Alexander, 122 Miss. 643, 84 So. 697; Ruffin v. Page, 109 Miss. 12, 67 So. 648.

The appeal is not barred because seasonably taken after judgment became appealable.

The order continuing the motion to be decided on or before January 4, 1932, had the effect of settling the motion for vacating hearing. January 4, 1932, was simply the day set for the hearing. The court's failure to pass upon the motion on or before January 4, 1932, did not amount to an automatic disposal of the motion either way. The vacation setting was not jurisdictional, except to give the court authority to act in vacation. In the event of the court's failure to act in vacation, the motion simply becomes an issue on the regular term docket of the court.

Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801.

There are no discontinuances known to the practice of the courts in this state.

O'Bannon v. Greenville Commercial Body, 159 Miss. 68, 132 So. 97.

In Union Motor Car Co. v. Cartledge, supra, the court inferentially overrules Scarborough v. Smith, 52 Miss. 517, by stating that a motion to set aside a judgment was continued from term to term without any special order of continuance.

Sledge v. Louisiana Highway Commission, 134 So. 704.

Counsel state that we have no decision on the question whether a motion for a new trial suspends the operation of section 2323, Code 1930. Counsel is in error. O'Bannon v. Greenville Commercial Body, supra, is decisive on this question, holding that a judgment is an exactly similar situation is not appealable. A clearer opinion could not be written. Section 2323 could not run against a judgment not appealable.

Young v. Alexander, 122 Miss. 643, 84 So. 697; 3 C. J., p. 465, sec. 282; United States v. Ellicott, 223 U.S. 524, 56 L.Ed. 535.

OPINION

Ethridge, P. J.

In this case there was a plea in bar on the ground that the appeal was not filed within the six months allowed by law for taking appeals from judgments. There is also a motion to strike the stenographer's notes on the ground, first, that no notice was given to the stenographer to transcribe his notes which complies with section 725, Code 1930, the notice being conditional and indefinite; and, second, that the transcribed notes have not been certified to as being correct by the judge, and have not been agreed upon by the parties, and contain material errors and omissions, in that all the exhibits have been omitted.

It appears that there was a trial on the issues between the parties at the November, term of the circuit court of Copiah county, at which term a motion for a new trial was filed and taken under advisement by the trial judge to be decided on or before January 4, 1932. There was no disposition of the motion for a new trial on that date, and at the February, 1932, term, the court was opened and adjourned under section 733, Code 1930. In other words, there was no business disposed of by the circuit court at the February term. At the July, 1932, term, the court overruled the motion for a new trial; the order overruling same being made on August 10, 1932. An appeal bond for two hundred dollars was filed on November 4, 1932, instead of for five hundred dollars as required by law, but a bond for five hundred dollars is tendered in this proceeding here which has been approved by the clerk of the circuit court.

Appellee contends, in the plea in bar, that the judgment rendered at the November, 1931, term of the circuit court became final when the trial judge failed to act upon it at the time set therefor in vacation; and that, if not correct in this position, it was overruled by operation of law at the February, 1932, term of the circuit court, and that, inasmuch as the appeal was not taken within six months after the end of this term of court, it became barred.

Counsel for appellee rely upon the case of Scarborough v. Smith, 52 Miss. 517, decided under section 534, Code of 1871, and which is different from section 734, Code of 1930.

We have since held that, where a motion for a new trial is not disposed of at one term of court, it is continued until the next term and remains to be acted upon by the court at a subsequent term....

To continue reading

Request your trial
23 cases
  • Mutual Health & Benefit Ass'n v. Cranford
    • United States
    • Mississippi Supreme Court
    • October 15, 1934
    ... ... v. Brown, [173 Miss. 155] 52 So ... 829; Altenberg v. Grant, 83 F. 880; Mayflower ... Mills v. Breland, 149 So. 787; Young v ... Alexander, 84 So. 697, 122 Miss. 643; Tullos v ... We are ... of opinion that the case of Mayflower Mills v ... Breeland, 168 Miss. 207, 149 So. 787, is not in conflict ... with the conclusion we have reached. In that ... ...
  • Rees v. Rees
    • United States
    • Mississippi Supreme Court
    • March 25, 1940
    ... ... Laws 1936. This motion must be sustained under the authority ... of Mayflower Mills v. Breeland, 168 Miss. 207, 149 ... So. 787 and the cases cited in the opinion therein, as ... ...
  • L. M. Kirkpatrick Co. v. I. C. R. Co
    • United States
    • Mississippi Supreme Court
    • May 6, 1940
    ...Co. v. N. Y., C. & St. L. R. Co., 155 I. C. C. 209; Schimmel v. Baltimore & O. R. Co., 168 I. C. C. 191, 179 I. C. C. 135; Mayflower Mills v. Breeland, 149 So. 787-788. the carriers consent or acquiesce in a further consideration of claims, a resubmission of the claim amounts to a withdrawa......
  • Johnson v. Mississippi Power Co.
    • United States
    • Mississippi Supreme Court
    • June 10, 1940
    ... ... 786, 42 L.Ed. 1192; Moore v. Montgomery Ward & ... Co., 171 Miss. 420, 156 So. 875; Mayflower Mills v ... Breeland, 168 Miss. 207, 149 So. 787; O'Bannon ... v. Greenville, etc., Co., 159 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT