52 Miss. 774 | Miss. | 1876
delivered the opinion of the court.
These cases were submitted on motions to docket and dismiss the appeals. Demurrers to the respective bills were filed by the defendants, which were overruled. Appeals were prayed, which were granted by the court upon the parties executing the bonds respectively required by the statute. The bonds were not executed. It was stated by the counsel for the motions, at the argument, that the chancellors of the respective courts in which these suits were pending regarded the prayer for, and granting, the appeal, as having the effect of withdrawing-
The motion to docket and dismiss applies when an appeal has been perfected, so that the jurisdiction of. the original court has been, stayed or. suspended, and the appellant has failed to file in this court the transcript, as required by its rules and practice.
The dismissal follows as ,a matter of right, because of the laches and negligence of, the appellant;. It is necessary, .in order to restore the case to- the inferior court for its. further action and disposition. Has the chancery court lost jurisdiction, and has this court acquired it, by a prayer of appeal and granting it, unless the statutory bond has been given? That question is.answered in the negative in Hardaway & Boykin v. Biles, 1 S. & M., 658. The court say: “The giving of the bond, with surety,, has been regarded in the light of a condition precedent, without complying with which, the appellate court could not take jurisdiction.” ■ There the bond was' defective, inasmuch as it was executed by third persons, and not by the appellant, as .required by law. The case was dismissed. The court referred to Porter v. Gresham, 3 How., 75. There the case was stricken from the docket, because “ the court did not approve the bond.” In Harper v. Archer, 4 S. & M., 108, the appeal was from the probate court; the bond was payable to the parties, instead of the probate judge, as required by the then existing law. . The case was stricken from docket — that ‘ ‘ being all that could be done,” as ‘ ‘ in such case the jurisdiction did not attach.” Such is also the case of Alexander v. Smith, Ex’r, 4. S. & M., 259. The entire subject of appeals, whether from interlocutory orders or final decrees, is regulated.by statute.
The uniform enunciation of the appellate court has been that, in order that a party may have the appellate jurisdiction, he must substantially conform to the statute. In the earliest
In the latest case, Eustis v. Holmes, 48 Miss., 36, it is repeated, in effect, that if the bond does not meet the essential demands of' the law, although one has been made, “ the appeal has not properly and legally been granted, and is void.” A. fortiori, is the appeal void if no sort of bond has been made. Where the appeal is void or inoperative for want of conformity of the bond to the statute, or for lack of a bond altogether, it does not bar a writ of error or appeal, if in such case the law permits either remedy. Bull v. Harrall, 7 How., 10; Eustis v. Holmes, 48 Miss., 37. But if the appeal has been perfected, and is dismissed for want of prosecution, according to the rules and practice of the court it bars a subsequent appeal or writ of error.
It follows, from the principles established in the cases, that neither of the appellants took or acquired an “ operative and effective appeal.” To constitute an appeal, the bond is essential ; without it the aggrieved party has not acquired a right to bring his case before this court for review. If these cases were upon our docket, all that we could do would be to dismiss for want of jurisdiction. The appeals were not perfected, and there are no cases subject to our cognizance to be dismissed. Notwithstanding the abortive steps taken towards perfecting the appeals, enough was not done to make them effective. The right of the respective chancery courts to proceed in the further adjudication of the causes has not been legally suspended or interrupted. Those coui’ts can now proceed to hear and determine them as though no appeal had been prayed.
The motion to docket and dismiss will therefore be denied. We have thought it proper to sajr thus much on the subject, in order to correct what seems to be a misapprehension in-some of the chancery coui’ts as to what constitutes an appeal from an interlocutory, or final, decree.
Motion overruled.
