Southern Christian Leadership Conference, Inc. v. A. G. Corp.

• Decision Date: 19 January 1970
• Docket Number: No. 45831,45831
• Parties: SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, INC., et al., v. A. G. CORPORATION.
• Court: Mississippi Supreme Court

Page 559

230 So.2d 559

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, INC., et al., v. A. G. CORPORATION.

No. 45831.

Supreme Court of Mississippi.

Jan. 19, 1970.

Fred L. Banks, Jr., James Robertson, Jackson, for appellants.

Pyles & Tucker, Jackson, for appellee.

ON MOTION TO STRIKE TRANSCRIPT AND TO DISMISS APPEAL

RODGERS, Justice.

The appellee, A. G. Corporation, has filed a motion to strike the transcript of the record and to dismiss the appeal of appellants, Southern Christian Leadership Conference, and others, in the foregoing cause of action, for the following reasons:

(1) The appellants did not follow the statutory procedure for an appeal and did not give notice to the court reporter to transcribe the testimony and to designate the contents of the record for appeal as required by Sections 1228 and 1640(b), Mississippi Code 1942 Annotated (Supp.1968), within the time required by law.

(2) The appellants did not perfect their appeal by posting bond or prepaying the cost of the transcript and depositing a bond for one hundred dollars ($100), or depositing that sum with the clerk in addition to the payment for the transcript.

The record reveals, and it is undenied, that A. G. Corporation filed a suit in the Chancery Court of Grenada County on September 28, 1966, in which the complainant sought an injunction against certain local and non-resident defendants and also sought damages for alleged injury growing out of an unlawful secondary boycott carried out in an unlawful manner. After a long trial the chancellor entered a decree in the Chancery Court of Grenada County, Mississippi, in favor of the complainant against persons and corporations named therein and granted a monetary judgment in favor of the complainant, A. G. Corporation. The decree was dated April 23, 1969, and was duly recorded in the office of the Chancery Clerk of Grenada County on April 24, 1969. On May 24, 1969, the defendants filed a petition for an appeal to the Supreme Court of Mississippi 'with supersedeas.' Thereafter, on May 31, defendants filed a similar petition but did not request an appeal 'with supersedeas.' A letter was filed with the Chancery Clerk withdrawing the previous petition filed requesting an appeal. The petitioner included a check for the sum of one hundred dollars ($100). Thereafter, on June 12, 1969, the check was returned with a request to substitute a proper deposit. The defendants were then notified that in order to perfect an appeal it was necessary to prepay the transcript of the record. The clerk, however, certified that a check for one hundred dollars ($100) was deposited by defendants on the 10th day of July, 1969. The record reveals that there was then due the court reporter the sum of two thousand eighty-eight dollars and fifty cents ($2,088.50); that there was due to the chancery clerk the sum of one hundred sixty-one dollars ($161) or the total sum of two thousand two hundred forty-nine dollars and fifty cents ($2,249.50).

The appellee alleges, and the appellants do not deny, the statement that 'no written notice whatsoever was given to the court reporter by the appellants in this case.'

The record shows that the first notice of an appeal was contained in the first petition for an appeal filed with the chancery court of May 24, 1969. This was thirty (30) days after the rendition of he decree by the chancellor.

The applicable parts of Section 1640, Mississippi Code 1942 Annotated (Supp.1968) are as follows:

'1. (a) In all cases in which the trial is noted by the official court reporter, any person desiring to appeal the case shall notify the court reporter in writing whthin ten (10) days after the adjournment of court of the fact that a copy of the notes is desired. The notice must be handed to the court reporter personally or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice, with a statement of how the notice was served, and a copy thereof shall in like manner be served upon appellee's attorney and the said notice shall designate the portions of the record, proceedings, testimony and evidence to be contained in the record of appeal.

'* * *

'(c) The appellant and appellee shall state in their respective designation that part of the clerk's record and reporter's transcript of the testimony and evidence they desire to be transcribed and included in the record and that part that might be omitted altogether.

'(d) All pleading, process, and testimony of witnesses, not essential to the decision of the questions presented by the appeal shall be omitted, unless specified to be included in the notices and designations aforesaid.'

This Court has consistently held for many years that unless written notice is given to the court reporter to transcribe the notes taken at the trial within the time allowed by Section 1640, Mississippi Code 1942 Annotated (Supp.1968) that the...