McAllister v. Richardson

• Decision Date: 26 February 1912
• Citation: 57 So. 547,101 Miss. 132
• Court: Mississippi Supreme Court
• Parties: MRS. M. J. MCALLISTER v. S. M. RICHARDSON

57 So. 547

101 Miss. 132

MRS. M. J. MCALLISTER v. S. M. RICHARDSON

Supreme Court of Mississippi

February 26, 1912

October 1911

APPEAL from the chancery court of Tippah county, HON. J. T. BLOUNT Chancellor.

Suit by Mrs. M. J. McAllister against S. M. Richardson. From a decree for defendant, plaintiff appeals.

Motion in supreme court to docket and dismiss appeal.

Motion overruled.

Spright & Spright, for motion.

Fontaine & Fontaine and Flowers, Alexander & Whitfield, contra.

OPINION

SMITH, J.

The final decree in this case was rendered on the 2d day of October, 1909 and the appeal bond was executed and filed on the 26th day of July, 1911; but no citation has been served on appellees. On the 20th day of October, 1911, appellees filed a motion to docket and dismiss for the following reasons: (1) Because the decree in said cause by the chancery court of Tippah county was rendered on the 2d day of October, 1909, and the appeal bond was filed July 25, 1911. (2) Because no citation has ever been issued or served on appellees. (3) Because no transcript has been filed in the supreme court. (4) Because of delay on the part of appellant in properly and promptly prosecuting said appeal. Afterwards, on the 25th day of November, 1911, the record was filed with the clerk of this court.

The case of Beasley v. Cottrell, 94 Miss. 253 47 So. 662, seems to hold that the filing of an appeal bond does not stop the running of the statute limiting the time within which appeals must be taken, but that the statue continues to run until the appellee is served with a citation, or the transcript filed in this court. That case was decided upon the authority of Chambliss v. Wood, 84 Miss. 209, 36 So. 246. As pointed out in the case of Lumber Co. v. Stevenson, 89 Miss. 678, 42 So. 796, this is a misconception of what the court held in Chambliss v. Wood, caused by the imperfect reports of that case. What the court in fact did hold in Chambliss v. Wood was that "the appeal is perfected on the filing of the bond, which stops the running of the statute." The appeal in the present case, therefore, was not barred by the Statute of Limitation.

The docket of the third district, from which district this appeal comes, at the October term of this court, is called on the first Monday of December, which day was by section 4906 of the Code the return day for appeals from that district. When appellees filed their motion to...