Turner v. Weaver
| Decision Date | 11 July 1921 |
| Docket Number | 22008 |
| Court | Mississippi Supreme Court |
| Parties | TURNER v. WEAVER |
1. APPEAL AND ERROR. Filing of appeal bond stops running of statute limiting time for appeal.
The filing of an appeal bonds stops the running of the statute (section 3112, Code 1906 [section 2476, Hemingway's Code]) limiting the time within which appeals must be taken.
2. APPEAL AND ERROR. Appeal will be dismissed when record not filed for more than a year after filing appeal bond.
An appeal will be dismissed under section 4921, Code 1906 (section 3197, Hemingway's Code), when the record is not filed in the supreme court for more than a year after the filing of the appeal bond, and no excuse is given for the delay.
HON. W. M. DENNY, JR., Chancellor.
APPEAL from chancery court of George county, HON. W. M. DENNY, JR., Chancellor.
Action between Arthur Turner, administrator of estate of Wiley W. Evans, deceased, and I. H. Weaver. Judgment for the latter, and the former appeals. Motion to dismiss appeal sustained.
See, also, 87 So. 641.
Motion sustained.
J. W. Backstrom, for appellant.
O. F. Moss, for appellee.
The decree appealed from was rendered on the 20th day of January, 1920, the appeal bond was filed and approved on the 8th day of March, 1920. Citation was served on April 28, 1921, and the record in the cause was filed in this court on the 14th day of May, 1921, more than thirteen months after the filing of the appeal bond.
The appeal is not barred by the statute of limitations for the reason that the bond was filed within the time allowed by law therefor, and the filing of an appeal bond stops the running of the statute of limitations. Farrish v. Davis, 86 So. 713. No excuse, however, is given for the delay of more than thirteen months in filing the record after the appeal bond was given; consequently under section 4921, Code of 1906 (Hemingway's Code, section 3197), the appeal must be dismissed. Y. & M. V. R. R. Co. v. McGraw, 118 Miss. 850, 80 So. 331.
Motion sustained.
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...of the statute. Adams Lbr. Co. v. Stevenson, 89 Miss. 687, 42 So. 796; Farrish v. Davis, 124 Miss. 711, 86 So. 713; Turner v. Weaver, 126 Miss. 496, 89 So. 153; Love Mayor and Board of Aldermen of Yazoo City, 148 So. 382. We respectfully submit that the plea in bar should be overruled, and ......
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...because of failure to prosecute the appeal with diligence. Yazoo & M. V. R. Co. v. McGraw, 118 Miss. 850, 80 So. 331; Turner v. Weaver, 126 Miss. 496, 89 So. 153. There is no sufficient showing of excuse for the default. Walden v. State, 127 Miss. 486, 90 So. Consequently, under the provisi......