161 So. 868 | Miss. | 1935
The judgment of the court below was reversed at the March, 1929, term of this court, and costs on appeal were adjudged against the appellee.
"When costs are awarded in this Court against the appellee, and there shall have been a return of nulla bona to an execution against him, and the costs shall be paid by appellant, no mandate shall issue upon the application of the appellee, until he shall pay into the Court, for the use of appellant, the costs paid by him."
The appellant has filed three motions herein. One is for an order to the clerk of this court directing him to file a motion for the dismissal of the cause under sec. 667, Code of 1930; one for the dismissal thereof without the intervention of the clerk; and one for an order directing the clerk to refuse payment of the costs if tendered him by the appellee, and to decline to issue a mandate *701 returning the cause to the court below. The grounds of these motions are that the appellee is guilty of laches in delaying to pay the costs and procure a mandate, and that the appellant has been prejudiced thereby, setting forth facts in support thereof.
Section 667, Code of 1930, applies only to pending cases, i.e., cases not yet decided, and this case has been decided, and final judgment disposing of the appeal has been rendered. No statute or rule of court grants the relief here sought, and whether the doctrine of laches applies to the appellee's delay in prosecuting the case will be for the determination of the court below on the return of the cause thereto. Cf. Tucker v. Wilson,
Motions overruled.