59 Miss. 520 | Miss. | 1882
delivered the opinion of the court.
Code 1880, § 2319, provides that, when all the parties to a-judgment or decree do not join in an appeal which is prosecuted, the clerk of the court before whom the appeal is taken, shall issue a summons, when the appeal is taken, to such as do not join in the appeal, to appear before the Supreme Court at the return term of the appeal, and it is further provided that “ the summons to join in the appeal may be issued by the clerk of the Supreme Court, at any time after the transcript shall be received by him.” Code 1880, § 2345, provides that the summons to answer the appeal shall be. served on the appellee or his attorney in fact or of record, at least ten days before the time to which it is returnable. No provision has been made in the Code, nor in any of the previous codes, as to the time when the service of the summons to join in an appeal shall be served. It is therefore a matter subject to be regulated by the rules of this court. We have adopted no rule upon the subject, but from an examination of the records of the court, which we have caused to be made, extending back through many years, it is found that the practice has been to make such summons returnable to the next succeeding term, in cases in which the writ has been issued by our clerk in analogy to the practice of issuing writs to appellees. There have been occasional departures from the practice, but they appear as exceptional. We consider this practice equivalent to a rule of court, and will adhere to it. As the summons in this cause
Motion overruled.