McAllister v. Richardson

57 So. 547 | Miss. | 1911

Smith, J.,

delivered the opinion of the court.

The final decree in this case was rendered on the 2d day of October, 1909, and the appeal bond was executed and filed on the 26th day of July, 1911; but no citation has been served on appellees. On the 20th day of October, 1911, appellees filed a motion to docket and dismiss for the following reasons: (1) Because the decree in said cause by the chancery court of Tippah connty was rendered on the 2d day of October, 1909, and the appeal bond was filed July 25, 1911. (2) Because no citation has ever been issued or served on appellees. (3) Because no transcript has been filed in the supreme conrt. (4) Because of delay on the part of appellant in properly and promptly prosecuting said appeal. Afterwards, on the 25th day of November, 1911, the record was filed with the clerk of this conrt.

The case of Beasley v. Cottrell, 94 Miss. 254, 47 So. 662, seems to hold that the filing of an appeal bond does not stop the running of the statute limiting the time within which appeals must be taken, but that the statue continues to run until the appellee is served with a citation, or the transcript filed in this court. That case was decided upon the authority of Chambliss v. Wood, 84 Miss. 209, 36 So. 246. As pointed out in the case of Lumber Co. v. Stevenson, 89 Miss. 678, 42 So. 796, this is a misconception of what the court held in Chambliss v. Wood, caused by the imperfect reports of that case. What the court in fact did hold in Chambliss v. Wood was that “the appeal is perfected on the filing of the bond, which stops the running of the statute.” The appeal in the present case, therefore, was not barred by the Statute of Limitation.

The docket of the third district, from which district this appeal comes, at the October term of this court, is called on the first Monday of December, which day was by section 4906 of the Code the return day for appeals from that district. When appellees filed their motion to docket and dismiss, they thereby entered their appearance in this court, and citation for them therefore became unnecessary.

When the return day for this appeal arrived, the record in the cause had been filed and appellees’ appearance had been entered more than ten days prior thereto. There was, therefore, no delay in the prosecution of the cause after the taking of the appeal, and, it being now on the docket, the motion to dismiss is overruled. Overruled.