McClanahan v. O'Donnell

• Decision Date: 10 October 1927
• Docket Number: 26389
• Citation: 148 Miss. 478,114 So. 336
• Parties: MCCLANAHAN et al. v. O'DONNELL et al. [*]
• Court: Mississippi Supreme Court

114 So. 336

148 Miss. 478

MCCLANAHAN et al. v. O'DONNELL et al. ^[*]

No. 26389

Supreme Court of Mississippi

October 10, 1927

Division A

1. APPEAL AND ERROR. Chancellor's finding that appellee committed no fraud or collusion to prevent perfecting record must be sustained.

Finding of chancellor on question of fact, that appellee did hot by fraud or collusion prevent appellants from perfecting record for appeal, must be sustained.

2. APPEAL AND ERROR. Appeal is solely statutory right, and, in absence of fraud or fault of opposing litigant, party desiring appeal must pursue statutory method.

An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant to secure judgment or decree in his favor, party desiring to appeal therefrom must assume remedy by statute.

3 EQUITY. Appellant held not entitled to have final decree set aside and a rehearing, because of inability to complete record after stenographer absconded without filing transcript (Hemingway's Code 1927, sections 594, 599).

Since legislature, under Hemingway's Code 1927, section 599 and Code 1906, section 796 (Hemingway's Code, section 594), has provided a plain and direct remedy for appellant in case of death of stenographer before filing copy of notes, or in case of failure to do so, and also for securing bill of exceptions in case of death, resignation, or incapacity of trial judge, remedy provided therein must be pursued by one desiring to appeal from an adverse ruling or decision, and appellants were not entitled to have original decree vacated and rehearing on ground that they were unable to prepare statement of evidence after the stenographer, who had taken greater part of evidence, absconded without filing transcript.

Suggestion of Error Overruled Nov. 21, 1927.

APPEAL from chancery court of Forrest county.

HON. T P. DALE, Chancellor.

Suit by Charles McClanahan and others against T. L. O'Donnell and others. From a decree dismissing a petition to set aside and vacate a final decree thereinbefore entered, complainants appeal. Affirmed.

Decree affirmed.

R. L. Bullard, for appellant.

The lower court erred in denying the rehearing: (1) In refusing to consider the statements of Rhodes tending to explain his corrupt conduct; and (2) in holding that appellants are not entitled to a rehearing because of their inability to have the evidence made part of the record.

Collusion, which is another name for conspiracy, is to be proved by all the facts and circumstances tending to show it. In this the widest latitude is always allowed. It is somewhat like the proof of mental soundness. Every fact in relation of the parties to each other, including what each said, whether in the presence of each other or not, is to be looked to. Generally, it can be proved in no other way. Of course, the combination must be proved before either can be held liable for the statement of the other, but such combination is to be proved by their statements in connection with all the other facts.

Whether the statements of Rhodes were admissible as evidence of collusion or not, they were still admissible to characterize the conduct of Rhodes and show that the efforts of appellant to complete the record were impossible. On either theory it was error to exclude them.

The impossibility of completing the record. Appellants are entitled to a rehearing regardless of whether O'Donnell was at fault or not. It is the application of the principle of justice which gives an unsuccessful suitor a new trial where without fault of his, he is denied his right to appeal. That principle seems to be of universal application. Heretofore, it could rarely, if ever, occur in equity because heretofore the record, evidence and all, was complete at the time of the trial and there was nothing left but for the looser to take the record, which already existed complete, to the appellate court.

The only condition is that the complaining party was diligent and without laches. Diligence of appellant was not questioned, except that they say he should have prepared a bill of exceptions and presented it to the chancellor within forty days after the time expired. This was not compulsory and was impossible. It would not have been impossible if appellee would have cooperated. Perhaps he was not under any duty to do so, but in face of his admitted refusal to do "anything whatever about it," it hardly lies in his mouth to visit on us the consequences of the impossibility his refusal made certain.

The statute applicable to both courts, with all its incidents, is chapter 145, Laws of 1920. The power to grant new trials is inherent in courts of general jurisdiction and refusal to exercise it when necessary to the ends of justice is error. For causes occurring before, or during the term, it must usually be applied for at the term which rendered the judgment. But for cause which arose after the term it is only necessary that the application be made without inexcusable delay; usually, but not always, at the next term. 29 Cyc. 722; 29 Cyc. 723, 930.

In this state the power of courts of general jurisdiction and the practice as to new trials is left as at common law except for section 800, Code of 1906. This section recognizes the inherent power of the court in all its fullness, but limits its exercise to two new trials in any case.

Opposing counsel say that they are under no obligation to try to agree on a bill of exceptions. In this they were in error. The contrary is held. The case of Evans v. Humphreys, 9 App. Cas. (D. C.) 392, is cited as authority for the proposition that a new trial will be awarded "where parties could not agree on a bill of exceptions and the court was unable to settle same."

The opinion of the United States supreme court in the case of Malony v. Adsit, 175 U.S. 281, 44 L.Ed. 163, throws much light on the proposition. See, also, Barrowcastle v. Bosworth, 98 Mass. 34.

It cannot be contended that appellant has not been deprived of a remedy which the law gives them that they made persistent effort to pursue in vain. When the necessity arose after the term, the application could not be made until it did arise and if the cause of it was the inability of the court to complete the record that he had, after the term, authority to complete, of course, it cannot be said that the record was still under the control of the court. There is too much authority on this for it to be an open question. Matthews v. Mulford, 73 N.W. 661 (Neb.); Holland v. Chicago, etc., R. R. Co., 71 N.W. 789; Owens v. Paxton, 11 S.E. 375; Curran v. Wilcox, 6 N.W. 762.

These appellants lost their right to appeal by the wilful and corrupt failure of an officer of the court to do his duty. They could not, dared not, perfect their appeal and bring the case to this court without the evidence. The decree would have been affirmed as of course. They were deprived of this right by the wilful failure of the court's officer in spite of all we could do. There is but one remedy for the injustice.

R. W. Cassedy and Stevens & Heidelberg, for appellee.

A final decree on the trial of this cause was rendered by the chancellor on October 2, 1925, in defendant's favor.

Appellant not having appealed from this final decree and the right of appeal now being barred, he would have no right upon which to base a motion for a new trial on account of not being able to get a copy of the evidence taken by Stenographer Rhodes. See section 2476, Hemingway's Code (section 3112, Code of 1906). This section provides the time in which an appeal must be prosecuted; and if the party to such judgment or decree fails to prosecute such appeal, within such time, the right to such an appeal has been forever lost.

Section 24, Hemingway's Code (section 48, Code of 1906) provides that an appeal may be granted by the court in term time. Section 25, Hemingway's Code (section 49, Code of 1906) provides for the condition upon which an appeal will be granted in civil cases. This section makes it a condition precedent to an appeal without supersedeas that a bond be executed as provided for in said statute.

It will be seen from the reading of these several statutes that under the procedure therein provided for, it is required that an appeal be prosecuted within twelve months from the date of the judgment or decree, that the execution and filing of the appeal bond is made a condition precedent to the right of appeal, and the date of such filing of such bond is by said statute made the date or time of the taking of such appeal.

In this case, the final decree was rendered by the chancellor on October 2, 1925. No appeal bond has even been filed in this case, unless the appeal bond filed by appellant in prosecuting an appeal from the decision of the chancellor on appellant's petition for a new trial be treated as an appeal bond sufficient to stop the running of the statute of limitations against a right of appeal from the final decree on the merits of this cause. This appeal bond was filed on October 7, 1926, same being more than twelve months after the rendition of the final decree.

Appellant's petition for a rehearing or for a new trial, seems to be bottomed on a complaint that the stenographer, Joe Rhodes, did not transcribe his notes of the testimony at the trial.

The rules and regulations, procedure and statutes regulating and providing for the transcript of evidence taken by a stenographer during the course of a trial, either in the circuit or chancery court, are statutes, rules, regulations and procedure to aid a person or party appealing to perfect the record of a cause on such appeal. Therefore, before any such party or person would be or could be in anywise interested in such testimony being transcribed, filed...