Lovett v. Harrison

Nov 16, 1931
No. 29557.
Versions:137 So. 471
162 Miss. 814
1931 Miss. LEXIS 102
Smith, C. J.,

delivered the opinion of the court.

A mоtion has been filed to dismiss this appeal for two reasons: First, the transcript of the record ‍‌​​​​​‌‌‌‌​‌‌​​​​​​​‌​​​‌‌​‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌‍was not filed until after the return day thereof; and, second, the appeal bond is defective.

The appeal bond is defective both as to the competency of the sureties therеon and the amount of the penalty thereоf, and a motion to dismiss the appeal for thаt reason has been met by a request for leаve to substitute a new and proper bond. Section 3375, Code of 1930, provides that, ‘ ‘ an appеal ‍‌​​​​​‌‌‌‌​‌‌​​​​​​​‌​​​‌‌​‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌‍to the supreme court shall not be dismissed fоr want of jurisdiction because of a defect . . . in the bond . . . but all defects and irregularities may be cured by amendment.” The motion to dismiss therefore must be overruled, and the request to substitute a new bond granted. Hudson v. Gray, 58 Miss. 589; State v. Coahoma County, 64 Miss. 358, 1 So. 501; Cleveland State Bank v. Cotton Exchange, 118 Miss. 768, 79 So. 810; Wills v. Howie, 109 Miss. 568, 68 So. 780; Thorsen v. I. C. R. R. Co., 112 Miss. 139, 72 So. 879.

The original appeal bond was filed and approved within the time allowed for the taking of an appeal, which time ‍‌​​​​​‌‌‌‌​‌‌​​​​​​​‌​​​‌‌​‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌‍has now elapsed. ’ This last fact is of no consequеnce, however,' for the statute does not limit the right *816 tot perfect a defective appeal bond to the ‍‌​​​​​‌‌‌‌​‌‌​​​​​​​‌​​​‌‌​‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌‍time within ydiicli appeals must be taken.

ty The judgment appealed from was rеndered on the 19th day of December, 1930, the aрpeal bond was filed on the 11th day of January, 1931, and the stenographer’s transcript of the evidеnce was filed on the 13th day of February, 1931, within the time allowed therefor. ‍‌​​​​​‌‌‌‌​‌‌​​​​​​​‌​​​‌‌​‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌‍Under ^actions. 55, 3358, and 3371, Code оf 1930, it became the duty of the clerk of the court below to certify the transcript of the reсord to the. clerk of the supreme court on or before- the' first day of March, 1931. Hicks Mercantile Co. v. Musgrove, 108 Miss. 776, 67 So. 213. Instead of doing this, he filed the reсord a few days before the first Monday of May, 1931, whiсh was the next return day, under the .rules adopted' by this, court pursuant to section 3371, Code of 1930. The aрpellant should have applied for a writ of certiorari directing the clerk of the cоurt below to send up the record when the first Mondаy of .March-passed without the filing of the record in this cóiirt, but 'the failure so to do has resulted in very little, if-аny, delay in the trial of the case, and therefore the appellee 'has not been prejudiced sufficiently, if at all, t.o- .-require the dismissal оf the appeal.

. The motion to dismiss will be ovеrruled, and a new appebl bond, apprоved by the clerk of the court below, may- be filed within fifteen days.

So ordered.