133 So. 238 | Miss. | 1931
On the 6th day of March, 1930, the appellee, D.S. Cox, doing business as the Columbus Ice Cream Creamery Company, recovered a judgment in the court of a justice of the peace of Lowndes county against the Tripp Furniture Company and C.M. Odom, for the sum of one hundred fifty dollars and sixty-seven cents and costs. On the 17th day of March, 1930, the justice of the peace approved an appeal bond, and filed with the clerk of the circuit court a certified copy of the record of the proceedings in the justice court, and all the original papers, and the original appeal bond given by the appellant. In the circuit court the appellee moved to dismiss the appeal on the ground that the appeal bond was not filed and approved within the ten days allowed by law for perfecting appeals from a justice court. Upon the hearing of this motion testimony was offered, showing in detail the manner in which the appeal bond was handled, and the efforts of the appellants to satisfy the justice of the peace as to the solvency of the sureties thereon, and tending to show that when the justice of the peace first refused to approve the bond, which was within the statutory limit of ten days, the sureties thereon were solvent, and it was a good and sufficient bond. Upon the conclusion of this hearing the court sustained the motion to dismiss the appeal, and awarded a writ of procedendo to the justice court to enforce its judgment; and from this judgment of the circuit court this appeal was prosecuted.
The record and proof shows that the judgment of the justice court was rendered on March 6, 1930, and the appeal bond was approved on Monday, March 17, 1930. The testimony was to the effect that the appeal bond, with two sureties thereon, was first submitted to the justice of the peace on Friday, March 14th, and he declined to approve it. The bond was then carried away, *93 and the names of other sureties secured thereon, and it was again tendered to the justice of the peace on Saturday, March 15th, and he still refused to approve it. After having secured the names of additional securities thereon, the bond was again tendered on Saturday night, March 15th, and the justice of the peace again refused to approve it, but informed the appellants that he would approve it if one additional surety was secured, and that the bond could be mailed to him. The bond was mailed to the justice of the peace later in the same night, and on the following Monday, March 17, 1930, he returned the bond to the attorney for the appellants, and informed him that he would not approve it without an additional surety thereon. Counsel for the appellant thereupon secured the name of an additional solvent surety, and again tendered the bond, and it was approved.
Excluding the day on which the judgment was rendered in the justice court, the ten days allowed for an appeal therefrom expired on Sunday, March 16, 1930; but section 1397 of the Code of 1930 provides, in part, that, in "cases when any number of days shall be prescribed, one day shall be excluded and the other included. When the last day falls on Sunday, it shall be excluded." In construing this section, in Nickles v. Kendrick,
Affirmed.