156 So. 876 | Miss. | 1934
Lead Opinion
Dr. Cranford instituted an action at law in the county court of Jones county seeking to recover disability benefits under a policy of health and accident insurance. In that court there was a verdict and judgment for Dr. Cranford. From that verdict and judgment, an appeal was attempted to be prosecuted to the circuit court of that county. The appeal was dismissed by that court on a motion of appellee. From the judgment of the circuit court sustaining the motion to dismiss the appeal, the cause is presented here.
On December 22, 1933, the county court rendered the judgment here involved, and on that day the clerk entered said judgment on the minutes of the court. That term of court continued until January 6th, on which day the appellant filed a motion in the county court for a new trial, the ground thereof being based upon errors alleged to have been committed in the original trial. On the same day the county court entered a judgment overruling appellant's motion for a new trial, an appeal bond was filed and notice was given to the stenographer to transcribe the notes. The appellee's ground for his motion to dismiss the cause was that an appeal was not filed within ten days from December 22nd, which he alleges is the date of the entry of the final judgment on the minutes of the county court. He further contends *158 that the motion for a new trial, being filed more than ten days after the entry of the judgment in his favor by the county court, could not operate to extend the time for appeal.
The applicable part of the statute controlling appeals in the county court is to be found in section 704 of the Mississippi Code of 1930 (1933 Supplement), chapter 256, Laws of 1932; that which more particularly appertains to the decision of this case is as follows: "Appeals from the county courts shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, provided, however, that the county judge may within the said ten days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty days from the date of the said final judgment."
Section 699, Code 1930, provides that the county court shall be a court of record, and the dockets, minutes, and records of said court are to be kept, as far as is practicable, in the same manner as are those of the circuit court.
By section 693, Code 1930, the Legislature has conferred limited jurisdiction on county courts as inferior courts with jurisdiction concurrent with the court of a justice of the peace in all matters, civil and criminal, of which a justice of the peace has jurisdiction; and also jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of one thousand dollars.
It is the precise contention of the appellant here that by its motion for a new trial on January 6, 1934, the judgment rendered on December 22, 1933, was thereby suspended, and that the judgment did not become final within the meaning of the statute quoted, supra, until the motion for a new trial was overruled. Appellant bases its contention upon the well-settled principle of *159 law that courts of record have control of their minutes and all judgments, decrees, or orders of the court during the term at which they are rendered, and that during the term the court has full power to set aside or modify any judgment so rendered.
It is the contention of the appellee that, notwithstanding a court of record has full power over its minutes and may vacate, amend, modify, or annul any decree rendered during that term, yet it is within the power of the Legislature to limit the time within which an appeal may be taken, and that a motion for a new trial may not, after the time for appeal has expired, operate to extend the time for such appeal.
It may be conceded for the purpose of this decision that the county court, being a court of record, is a common-law court having jurisdiction over common-law actions within limitations. It may also be conceded that the general rule of law applying to common-law courts would apply to this court. In the case of Bronson v. Schulten,
Appellant relies most strongly upon the case of Brockett v. Brockett, 2 How. 238, 11 L. Ed. 251, in which it was held that "no appeal lies from the refusal of the court below to open a former decree. But if the court entertains a petition to open a decree, the time limited for an appeal does not begin to run until the refusal to open it, the same term continuing." This case appears to be authority for the contention made by appellant, but it is to be noted that the exact question was whether or not the appeal was to operate as a supersedeas, as much longer time was allowed for a writ of error at that time *160
than was allowed for a supersedeas of the judgment. Appellant also cites, in support of the Brockett case, the Slaughterhouse cases, 10 Wall. 273, 19 L. Ed. 915; Texas Pac. Ry. Co. v. Murphy,
Whatever may be the position of the Supreme Court of the United States as to the effect of the Brockett case, we feel content to say that the case of Conboy v. First National Bank,
In the case of Mills v. J.H. Fisher Co. (C.C.A. 6th Circuit), 159 F. 897, 898, 16 L.R.A. (N.S.) 656, Judge LURTON held that where a petition for a rehearing was filed within ten days and not disposed of by the court until after the ten days allowed for appeal had expired, the appeal was in time, and said, with reference to the Conboy case, supra, that: "The petition to *162 rehear was filed after the time for an appeal had expired, and the right of appeal could not be resuscitated by an application to rehear."
Nor do we think the case of Altenberg v. Grant (C.C.A.), 83 F. 980, is in conflict herewith. Judge TAFT, speaking for the circuit court, there had before him a case where the final judgment was rendered on the 12th of November, 1895, and three days later, November 15th, the term continuing, there was a motion for a new trial, and some time subsequently the motion for a new trial was overruled. The court held that the motion for a new trial operated to suspend the statute limiting the time within which appeals might be prosecuted until the disposition of the motion for a new trial.
In the case at bar the language of the statute is plain, and it was the manifest purpose of the statute to make the time in which appeals must be filed apply to at least three types of judgments rendered in the county court: first, such judgments as might have been rendered by a justice of the peace; second, such judgments as might have been rendered by a chancery court in equity proceedings; and, third, common-law actions within limitations. Motions for a new trial, after the entry of the judgment, are common in our practice in the circuit courts. If the Legislature had intended to allow time beyond the ten days within which to make a motion for a new trial, it could and would have said so by providing that the appeal might be prosecuted within ten days from the adjournment of the term of court, or by fixing the time as thirty days from the entry of the judgment. It did not do so. Our view is strengthened as to the intention of the Legislature by the fact that it is provided in this statute that the county judge may, within the ten days, extend the time in certain cases, on a certain condition, showing a clear intention to limit the county judge in his power to extend the time beyond ten days. We are not here dealing with the power of the county court over its judgments or decrees, but with *163 the right of a party to appeal and as to the limitation clearly fixed by a statute.
We are of opinion that the case of Mayflower Mills v. Breeland,
We conclude that a motion for a new trial filed in the county court more than ten days after a final judgment or decree has been rendered and entered on the minutes of that court does not operate to suspend the judgment. In other words, that the time for appeal having expired, a party could not resuscitate the right of appeal (which had been lost) by filing a motion for a new trial at the same term more than ten days after the final judgment had been entered on the minutes of the court. In this case, in view of this statute, the motion for a new trial was not seasonably made; the right to an appeal had expired. The court below so held.
Affirmed.
Addendum
Suggestion of error overruled.