Wooten v. City of Laurel, 39460

• Decision Date: 27 September 1954
• Docket Number: No. 39460,39460
• Citation: 74 So.2d 752,221 Miss. 652
• Parties: Mrs. J. F. WOOTEN et al. v. CITY OF LAUREL et al.
• Court: Mississippi Supreme Court

Page 752

74 So.2d 752

221 Miss. 652

Mrs. J. F. WOOTEN et al. v. CITY OF LAUREL et al.

No. 39460.

Supreme Court of Mississippi.

Sept. 27, 1954.

Melvin, Melvin & Melvin, Laurel, for appellant.

L. K. Saul, Ellisville, Welch, Gibbes & Butts, Deavours & Hilbun, Laurel, for appellee.

McGEHEE, Chief Justice.

There was a final judgment rendered on October 16, 1953, in the circuit court, whereby the suit of the appellants was dismissed on the ground that the declaration stated no cause of action and that the plaintiffs had declined to amend the declaration.

The question presented for decision on the motion to dismiss the appeal to this Court is whether or not the appeal was taken in the manner and within the time provided by law.

Section 1162, Code of 1942, provides among other things that on appeals from final judgments of a circuit court in civil cases, where the appellant shall not desire a supersedeas, he may give a bond in the penalty of $500 conditioned for the payment of all the costs of appeal in case the judgment or decree be affirmed as to such appellant. This statute further provides 'but if appellant prepay the cost of the transcript, a bond for the sum of one hundred dollars shall be sufficient, or the appellant may deposit that sum with the clerk in lieu of the bond; * * *.'

Section 753, Code of 1942, provides that 'Appeals to the Supreme Court shall be taken within six months next after the rendition of the judgment or decree complained of, and not after, * * *.'

On or before February 5, 1954, the appellants paid to the clerk the sum of $50 as a 'cash bond' for this appeal. They did not 'prepay the cost of the transcript,' a condition on which the right to give a bond for the sum of $100 or deposit that sum with the Clerk in lieu of the bond, is predicated.

After the time had expired under Section 753, supra, for perfecting the appeal, and in response to a suggestion by the Clerk of this Court to the circuit clerk that Section 1162, supra, required a cash deposit of $100, or a bond in the amount of $100, and the prepayment of the transcript fee, unless a bond in the sum of $500 has been given, the appellants deposited the further sum of $50 in cash with the circuit clerk, and he certifies that he mailed the total sum of $100 to the Clerk of the Supreme Court.

The $100 deposit or bond provided for by Section 1162, supra, in cases where the cost of the transcript has been prepaid, is intended to cover the additional cost on appeal...