Adams Lumber Co. v. Stevenson

42 So. 796 | Miss. | 1906

Whitfield, C. J.,

delivered the opinion of the court.

The motion in this case is to dismiss the appeal because barred by the two-year statute of limitations, not to docket and dismiss for failure to properly and promptly prosecute the appeal.

The cases of Houston v. Witherspoon, 68 Miss., 188 (s.c., 8 South. Rep., 515), and Chambliss v. Wood, 84 Miss., 209 (s.c., 36 South. Rep., 246), are relied on in support of the motion. In both those cases the motion was to dismiss the appeal for failure to properly and promptly prosecute the appeal, not to dismiss the appeal because barred by the statute of limitations. This difference in the motions makes all' the difference in the proper disposition of this case. In the case of Houston v. Witherspoon, the court, speaking through Campbell, J., distinguishes that case from the case of McFatter v. State, decided at the April term, 1888. In the McFatter case, the convict appealing prosecuted his appeal within the time by giving the bond, but after that failed to do anything whatever in the prosecution' of his appeal until a greater length of time than required to bar an appeal had elapsed between the taking of the appeal and the filing of the transcript in this court, which was not done until December, 1887, the bond having been given in June, 1885; in other words, in the McFatter case, about two years and six months were allowed to elapse between the filing of the bond and the filing of the transcript in this court, and in that case, because of this fact, that the appellant had allowed two years and six months so to elapse without making any effort to prosecute his appeal, the court sustained a motion to dismiss the appeal because of the delay, not because the appeaT was barred.

In the Houston case, not only was the bond given within about two months of the rendition of the decree, but citation was issued and served the next day after the bond was filed, and the appeal perfected. To be exact, the bond was filed June 4, 1889, and the citation was served June 5, 1889. The appellant took no further steps in the prosecution of his appeal until December-20, 1890, about a year and six months afterwards. On December 20, 1890, transcript was filed in this court and the appearance of the appellee entered. The appellee did nothing towards having the case docketed and dismissed until January 1, 1891, when he filed a motion to dismiss the appeal because of the delay, not because the appeal was barred; and this motion was overruled in the Houston case on the express ground that the appellee had acquiesced in this long delay, because he had not filed his motion to dismiss the appeal for the delay until a year and seven months after the giving of the bond and the serving of the citation. In other words, in the Houston case, the motion to dismiss on account of delay was overruled on the express ground that the appellee had acquiesced in the delay by not sooner filing his motion to docket and dismiss.

In the case of Chambliss v. Wood, 84 Miss., 209 (s.c., 36 South. Rep., 246), the facts, as clearly stated in the opinionj were, first, that the decree was rendered in July, 1901; second, the transcript was not filed until September, 1903, more than two years after the rendition of the decree, and third, and this is the important point, no citation was served on the appellee in the Chambliss case at any time; and we expressly held that since no citation has been served at any time on the appellee, and the appellee had, consequently, had no notice whatever that any appeal had been prosecuted, he could not be held as having acquiesced in the delay, and for this reason the motion in that case, which was a motion to dismiss the appeal because not properly and promptly prosecuted, was sustained.

We desire to call special attention to the fact of three serious mistakes in the report of the case of Chambliss v. Wood. The syllabus in that case expressly says that an appeal will be barred if no citation be served on the appellee and no transcript filed within the two years allowed for taking an appeal, although a proper appeal bond should be filed' within- the two years. We have never held this. The appeal is perfected on the filing of the bond, which stops the running of the statute. Code 1892, § 46. In the statement of the case, on page 210 of 84 Miss, and page 246 of 36 South Rep., it is incorrectly stated that the appellee made a motion to dismiss the appeal because barred by limitation.' This is erroneous, for the motion is as follows: “Comes appellee and moves the court to dismiss the appeal because, while the bond of appellee was perfected and approved June 9, 1902, the transcript was not filed until September 25, 1903.” Nothing is said in the motion or in the opinion of the court about the motion being sustained because of the bar of the statute. And again it is erroneously stated in the statement of the case, on page 210 of 84 Miss, and page 246 of 36 South. Bep., that citation was served on the appellee after the expiración of the two years. The opinion expressly states that no citation whatever was served at any time, and we have examined the original record in the case of Chambliss v. Wood, and find the statement in the opinion to be correct. The language in the opinion that the decree in this case was rendered in July, 1901, and appeal was consequently barred in July, 1903, simply declared the fact of the period which would be required to elapse before the bar of the statute would apply. What followed in the opinion plainly shows that the decision rested on the motion as made to dismiss because of the delay, and that motion was sustained for the reason that the appellee, never having been served with citation, could not properly be held to have acquiesced in that delay.

Since the motion before us is not a motion to dismiss for delay, it cannot be sustained on that ground; and, since the giving of the bond perfected the appeal within the two years, the bar of the statute has not applied. The learned counsel for the appellee was fully justified, however, in making this motion, having been misled by the erroneous statements in the case of Chambliss v. Wood, in the syllabus and in the statement of the case. In order to prevent any further misconception in this particular case, we say that even a motion to docket and diomiss because of delay could not be sustained now, for tbe reason tbat tbis case was not returnable until tbe call'of tbe docket for tbe southern district, before which time tbe citation bad been served for more than tbe period of ten days; in other words, tbe transcript was filed and tbe citation was served more than ten days before tbe time for tbe call of tbe southern •district.

For these reasons, and these reasons alone, the motion is overruled.