Town of Tutwiler v. Gibson

• Decision Date: 22 April 1918
• Docket Number: 20284
• Court: Mississippi Supreme Court
• Parties: TOWN OF TUTWILER v. GIBSON

78 So. 926

117 Miss. 879

TOWN OF TUTWILER v. GIBSON

No. 20284

Supreme Court of Mississippi

April 22, 1918

APPEAL from the circuit court of Tallahatchie County, HON. E. D DINKINS, Judge.

Suit by Mrs. E. W. Gibson against the town of Tutwiler. From the judgment rendered, the town of Tutwiler appeals.

The facts are fully stated in the opinion of the court. court.

Motion sustained.

Hays Stingley & Whitten and Wells, May & Sanders, for appellants.

Ward &amp Ward and R. H. & J. H. Thompson, for appellee.

SMITH C. J. ETHRIDGE, J. dissenting.

OPINION

SMITH, C. J.

This cause comes on to be heard on motion by appellee to dismiss the appeal on the ground that it was taken after the expiration of the time allowed by the statute therefor, which motion is in effect, and will be treated as, a plea in bar of the appeal.

The judgment appealed from was rendered on the 11th day of March, 1915, and the record was filed in this court on the 27th day of February, 1918, two years, eleven months, and fifteen days thereafter. The record contains neither a petition nor a bond for appeal, so that, under section 47, Code of 1906 (Hemingway's Code, section 23), the appeal must be considered as having been taken at the time the record was filed in this court.

Section 3112, Code of 1906 (Hemingway's Code, section 2476), provides that appeals to the supreme court shall be taken within two years next after the rendition of the judgment or decree complained of, which time was reduced by the Laws of 1916, chapter 222, to one year. Section 24, Hemingway's Code. Since both of these periods of time had expired when the appeal was taken, we are not called upon here to decide whether the original statute or the amendment thereto governs. Section 104 of our state Constitution, and section 3096, Code of 1906 (Hemingway's Code, section 2460), provide that "statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof." These sections, however, have no bearing upon the question here presented for the reason that the statute limiting the time within which appeal to the supreme court must be taken is not a statute of limitation in the ordinary sense. The right of appeal exists only by virtue of the statutes which confer it, can be exercised only in accordance therewith and within the time allowed thereby. Section 33, Code of 1906 (Hemingway's Code, section 8), by which the right of appeal is granted, and section 3112, Code of 1906 (Hemingway's Code, section 2476), are but parts of the legislative scheme by which the right to appeal is granted and regulated. Consequently they must be construed together and given the same interpretation as if they were in fact, as they are in effect parts of the same statute; and, when this is done, it will appear that the right granted by the first of these sections is not simply the right to appeal but the right to appeal within a specified time.

It is, for obvious reasons, to the interest of the public that the time within which appeals in civil cases can be taken should be limited, which reasons apply with equal force to a municipality that they do to a natural person, which fact, we presume, influenced the legislature in making no distinction between them.

Motion sustained.

DISSENT BY: ETHRIDGE

ETHRIDGE J. (dissenting).

I dissent from the view of the majority on this motion to dismiss. Section 94 of the Code of 1906 (Hemingway's Code, section 76), gives the state, counties, and municipalities and public officers representing them, the right of appeal, and in this section there is no limitation whatever upon the right so far as time is concerned. This section is in the chapter on Appeals, and if it was the only section bearing upon the question there could be no doubt that there would be no time limit upon the taking of appeals during the life of the judgment. The only limitation upon the right to appeal is contained in section 3112 of the Code of 1906 (section 2476, Hemingway's Code), in the chapter of limitation of actions, which reads as follows:

"Appeals to the supreme court shall be taken within two years next after the rendition of the judgment or decree complained of, and not after, saving to persons under disability of infancy or unsoundness of mind the like period after their disability shall have been removed."

In the same chapter on the limitation of actions is section 3096 of the Code of 1906 (Hemingway's Code, section 2460), which reads as follows:

"Statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof: but all such statutes shall run in favor of the state, the counties, and the municipal corporations therein; and the statutes of limitations shall begin to run in favor of the state, the counties, and municipal corporations at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon."

This section was section 3112, Code of 1906, section (2752) of the Code of 1892 and section 2682 of the Code of 1880, and in that Code, which was in force when the Constitution of 1890 was adopted, this section on limitations of appeals was in the chapter on limitation of actions, and not in the chapter on Appeals. And the same is true of all of the Codes of the state, beginning with Hutchinson's Code and coming down to the present upon that subject. The legislature classified this statute as a statute of limitation, and placed it in the chapter upon that subject, and throughout the legislative history it has been in the chapter on limitation, and not in the chapter on Appeals or the chapter on writs of error in the same Code when the writ of error was the method of bringing causes for review on appeal. In the Code of 1857 it was expressly provided at page 402, article 25, of the chapter on limitations of actions that the limitations herein prescribed for the commencement of actions shall apply to the same actions, when brought in the name of the state or any county or in the name of any officer, or otherwise, for the benefit of the state or any county, in the same manner as actions brought by citizens. In this same chapter on page 401, article 17, appeals were limited by statute to three years next after the rendition of the judgment or decree complained of. The statute making the limitation run against the state, counties, and municipalities remained in force from 1857 to 1877, and the result was disastrous to the interests of the state, and during this period of time millions of dollars worth of...