Meridian Coca-Cola Bottling Co. v. Watson

• Decision Date: 14 December 1931
• Docket Number: 29711
• Citation: 163 Miss. 486,138 So. 407
• Court: Mississippi Supreme Court
• Parties: MERIDIAN COCA-COLA BOTTLING CO. et al. v. WATSON

138 So. 407

163 Miss. 486

MERIDIAN COCA-COLA BOTTLING CO. et al. v. WATSON

No. 29711

Supreme Court of Mississippi

December 14, 1931

Division A

Suggestion Of Error Overruled, May 16, 1932.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE Judge.

Action by J. B. Watson against the Meridian Coca-Cola Bottling Company and another. From a judgment for plaintiff defendants appeal. On motion to have the case passed. Motion sustained.

See, also, 134 So. 824.

Motion sustained.

Gilbert & Cameron, of Meridian, for appellants.

The record in this cause was filed in the supreme court on the 10th day of September, 1931, and the document purporting to be waiver of process and agreement of counsel that said cause be tried at the September term of this court was filed and executed within ten days of the return day to the September term, 1931, of this court. No process having been issued and no waiver of process having been filed for more than ten days before the return day to the September term of this honorable court the cause was not triable until the January, 1932, term of this court.

Williamson & Clayton, of Meridian, for appellee.

Although the clerk of the court did not issue process on the appellees until on the 14th day of November, 1931, there was no occasion for it to be issued then because the appellees had entered in the record prior to the filing of same in the supreme court a waiver of process and an appearance of appellees to the September, term, 1931, of this court.

The appellees resist the motion of appellants seeking to have this cause set over until the January, 1932 term of this honorable court and resist the motion in its entirety, the record having been filed in this honorable court on September 10, 1931.

OPINION

Smith, C. J.

This is an appeal from a judgment against two defendants. One of them filed an appeal bond, approved by the clerk of the court below, on the 5th day of September, 1931. There appears in the record, also, an appeal bond by the other defendant, but it has neither been marked "filed" nor approved by the clerk. A waiver of summons to answer the appeal, and also "the ten days allowed and provided by section 52 of the Code of 1930," was filed by the appellee. This waiver is dated the -- -- day of September, 1931, and is not marked "filed." We will assume, however, as counsel have, that it was signed and filed after the execution of the appeal bond, and before the convening of this court for its September term, on Monday, September 14, 1931. The record was filed with the clerk of this court on Thursday, the 10th day of September; and, if returnable to the first day of the present term, is due to be called, and has been published, for submission on Monday, December, 14th.

An objection has been interposed by the appellants by motion to its being heard then; the reason assigned therefor being that the appeal was not returnable until the January rule day of this court, which is the first Monday of January, 1932.

The clerk of the court below failed to certify to this record, which fact will be here left out of view; as will also the fact that an appeal bond appears to have been filed by only one of the defendants against whom the judgment appealed from was rendered.

The return days for appeals and process in this court are the first days of each of its two terms; that is, the first Monday of September and the first Monday of March; "and such other day or days as may be designated by a rule or order of the court," ...