Miller v. Phipps
| Decision Date | 19 November 1928 |
| Docket Number | 27618,27617,27619 |
| Citation | 119 So. 170,152 Miss. 437 |
| Court | Mississippi Supreme Court |
| Parties | MILLER, STATE REVENUE AGENT v. PHIPPS et al. [*] |
Suggestion of Error Overruled Dec. 17, 1928.
APPEAL from chancery court of Sunflower county, HON. WARD ALLEN Special Chancellor.
Separate suits by W. J. Miller, state revenue agent, against W. H Phipps and others. Decrees of dismissal and complainant brings certiorari. On motions to docket and dismiss. Motion for certiorari overruled, and motions to docket and dismiss sustained.
Motion overruled.
B. B. Allen, for appellant.
In No. 27617:
Everett & Forman and Jas. L. Williams, for appellees.
In No. 27618:
Everett & Forman, Jas. L. Williams and Sivley, Evans & McCadden, for appellees.
In No. 27619:
Brady, Dean & Hobbs, for appellees.
In cause No. 4855 a demurrer was sustained and, complainant declining to plead further, an appeal was granted in open court to the appellant, W. J. Miller, revenue agent, on October 8, 1927.
In cause No. 4846, demurrer having been sustained, and complainant having declined to plead further, judgment was entered dismissing the bill on October 8, 1927.
In cause No. 4851, demurrer likewise having been sustained, and complainant declining to plead, the bill was dismissed and appeal was granted in open court on October 8, 1927. Nothing was done to secure transcripts and the filing of the records in this court until the 27th day of February, 1928, when a petition was filed, by attorneys for the appellant, with the chancery clerk, reciting the rendition of the decrees and praying an appeal to the supreme court at its next term thereof. The chancery clerk did not transcribe and send up the record in any of the cases, and the petition for certiorari which was filed September 15, 1928, recites that the appellant was not required to give an appeal bond; and desiring to have an appeal, the appellant gave notice to the clerk of the court that an appeal had been taken, notifying said clerk to send up the transcript of the record.
The appellees, after filing the motion for certiorari, after the beginning of the regular September term, 1928, filed a motion in each case to docket and dismiss, showing that they had never been served with summons to answer said appeal, and they considered it abandoned until they received the motion for certiorari, and that the appeal had become barred because more than six months had elapsed between the dates of the decrees appealed from, and more than six months had elapsed after the filing of the petition for appeal with the clerk of the chancery court before applying for the writ of certiorari, and that the appeal was barred by the six months' limitation statute.
The movants to dismiss centend that where a bond is not required to take an appeal, that the appeal is not perfected until the record is filed in this court, and where a bond is required it is not perfected until the bond is filed.
We are of the opinion that in the cases in which an appeal was granted in open court, the running of the Statute of Limitations was stopped where nothing else was done by the appellant to perfect the appeal. In cases in which such appeal was not granted in open court, where no bond is required, the petition for appeal, when filed with the clerk, stops the running of the Statute of Limitations.
Where an appeal is granted in open court, if a bond is required, which is not filed during term time, but after the adjournment of court, the filing of the bond is necessary to perfect the appeal, and notice should be given to the appellees by summons to answer the appeal when the appeal bond is filed in such manner in vacation; but when an appeal is granted in open court, and no bond is required, it will not be necessary to issue summons to advise the parties, because they are charged with notice of the decree granting the appeal.
By this statute, a petition for an appeal is not necessary; but a petition for appeal, when filed, where no bond is required perfects an appeal, and nothing in this statute proves to the contrary. The language, "or, if...
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Mayflower Mills v. Breeland
...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. The stenographer's notes should be stricken from the record. Notice to the stenogr......
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... ... public officer, and the Legislature so knew, and to that end ... he will have to be held to be a mere employee ... State ... v. Miller, 144 Miss. 614, 109 So. 900; Shilling v. State, 143 ... Miss. 709, 109 So. 737; Robinson v. State, 143 Miss. 247, 108 ... So. 903; Association v ... 2; Hudson v ... Gray, 58 Miss. 589; Mercantile Trust Co. of San Francisco v ... Miller et al., 166 Calif. 563, 137 P. 913; Miller v. Phipps, ... 119 So. 170 ... Even ... though the appellant did not have the right to appeal without ... bond, his appeal cannot be dismissed ... ...
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Love v. Mississippi Cottonseed Products Co.
... ... he will have to be held to be a mere employee ... State v. Miller, 144 Miss. 614, 109 So. 900; ... Shilling v. State, 143 Miss. 709, 109 So. 737; ... Robinson v. State, 143 Miss. 247, 108 So. 903; ... Gray, 58 Miss. 589; Mercantile Trust Co. of San ... Francisco v. Miller et al., 166 Cal. 563, 137 P. 913; ... Miller v. Phipps, 119 So. 170 ... Even ... though the appellant did not have the right to appeal without ... bond, his appeal cannot be dismissed because ... ...
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