91 So. 702 | Miss. | 1922
delivered the opinion of the court.
This is a motion to docket and dismiss from which and the affidavits filed in support of and in opposition thereto the following facts appear; The cause was tried at the January term of the-court below, and a decree was rendered against the appellants, but not entered on the minutes of the court. On February 5th the appellants, not knowing that the decree had not been entered of record, executed an appeal bond. On March 4th the chancellor in vacation, at whose request does not appear, signed a decree, disposing of the cause in accordance with the decree rendered, but not entered on
The reason the clerk of the court below has not filed the record in this court is that he was instructed not to do so by counsel for the appellant. He states that his reason for so doing was that he is of the opinion that both the appeal bond and vacation order of the chancellor are void, and the cause is still pending in the court below. •
An appeal bond is valid though executed and approved before the entry of the decree to be appealed from,- and when the decree is entered will transfer the cause to the supreme court. James v. Woods, 65 Miss. 528, 5 So. 106. A chancellor has the authority under some circumstances to enter orders and decrees in vacation 'from which appeals will lie here from the decree or order made by the chancellor in vacation, the validity of which will be decided when the cause is presented on its merits. Counsel for the appellants should not have directed the clerk not to send the record up, but as it appears that he acted in good faith in so doing, and since no material harm has resulted to the appellee therefrom, the motion to dismiss will be overruled, provided the appellants will at once apply for a writ of certiorari, directing the clerk of the court below to send up the record; otherwise the motion will be sustained.
Motion overruled, provided a writ of certiorari is applied for 'at once.
Motion overruled.