Crawley v. Ivy

116 So. 90 | Miss. | 1928

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 352, n. 43; p. 1115, n. 19; p. 1395, n. 30; p. 1406, n. 90; Findings of master supported by competent evidence not disturbed on appeal, see 2 R.C.L. 211; 1 R.C.L. Supp. 448; 4 R.C.L. Supp. 93; 7 R.C.L. Supp. 1374. The appellee sued the appellant in the court below on a debt alleged to be due him, and obtained a decree, but for less than the amount for which he sued. The appellant brought the case to this court. After the expiration of the time within which an appeal to this court can be taken, the appellee filed an appeal bond with the clerk of the court below, and also filed a cross-assignment of error. The appellant filed a motion to dismiss the appellee's cross-appeal; the ground thereof being that it appears from the record that the bond therefor was not given until the time allowed for taking an appeal had expired.

Our statutes do not specifically provide for a cross-appeal; but such an appeal may, of course, be taken by the execution of a bond therefor under the statute regulating appeals. A custom, however, has long prevailed in this court, sanctioned by at least two of its decisions (Wilson v. Jourdan, 79 Miss. 133, 29 So. 823; Webb Sumner Oil Mill v. Southern Coal Co., 129 Miss. 127, 91 So. 699), under which an appellee may take a cross-appeal without the execution of an appeal bond, by simply filing a cross-assignment of error, provided the entire record, or so much thereof as is necessary for the consideration of the cross-appeal, has been brought to this court by direct appeal. See, also, Feder et al. v. Field et al., 117 Ind. 386, 20 N.E. 129; San Pedro, L.A. S.L.R. Co. v. Board of Education of Salt Lake City, 35 Utah, 13, 99 P. 263. The required conditions exist here, and it was not necessary for the appellee to give an appeal bond in order to prosecute a cross-appeal.

Chapter 153, Laws of 1926 (Hemingway's 1927 Code, section 2650), which limits the time within which an appeal to this court can be taken, has no bearing on the time within which an assignment of error may be filed after the record in a case has been transferred to this court; the filing of assignments of error being regulated by rule 6 of this court. 104 Miss. 904, 72 So. VI. Neither the appellant nor the appellee complied with the requirement of this rule that an assignment of error must be filed on or before the return day; consequently, neither can complain of the other therefor.

Overruled.