No. 36477. | Miss. | Sep 22, 1947
Lead Opinion
This cause, appealed from the Chancery Court of Hinds County, is before us on appellee's motion "to dismiss this appeal unless the appellants shall, within a time allotted by this court, file a new bond herein, conditioned and in the proper penalty required by statute with the necessary and proper sureties thereon."
The pertinent part of the bond is as follows: "Know all men by these presents, that we, W.T. Williams, as principal, and U.S. Fidelity Guaranty Company and B.D. Wade, as sureties, residents of the State, are held and firmly bound unto J.E. Walton Son, and others, in the penal sum of one hundred ($100.00) dollars for which payment well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators, (and successors) (a), forever. The condition of the foregoing obligation is such, that whereas, in the Chancery Court of Hinds County, a judgment (or decree) was rendered against complainants and in favor of defendants at the May 1946 term of said court on the day of June 1946, and the said complainant feeling aggrieved by said judgment (or decree) has prayed and obtained an appeal to the Supreme Court. Now if the said W.T. Williams (1) shall prosecute his appeal with effect and (2) shall pay all costs, if the same be affirmed, then this obligation to be void; otherwise to remain in full force and effect."
The final decree of the Chancery Court, among other provisions, contains the following: "It is, therefore, so *645 ordered, adjudged and decreed by the Court that the complainant W.T. Williams do have and recover nothing of and from the defendants, Lee Irby, doing business as `Lee Irby Supply Company,' R.C. Roberts (called `Charlie' Roberts), doing business as `Robert's Grocery and Market,' Albert Dickson and Will Terry, doing business as `The Brand Mule Market,' J.E. Walton, doing business as `J.E. Walton Son,' and Luther A. Smith, doing business as `Justice Smith,' and said Bill of Complaint herein is now finally dismissed with prejudice; and the complainant, W.T. Williams, and his surety, United States Fidelity and Guaranty Company, are assessed with all costs of this suit to be taxed by the clerk of this court and for all of which proper process may issue."
It will be noted from the decree that the appellees were defendants in the trial court, and hence should be named as obligees in the appeal bond, according to the language of the statute, "it shall be sufficient if the appellant give bond to the opposite party." Section 1162, Code 1942. The bond merely recites that appellants "are held and firmly bound unto J.E. Walton Son and others." This is not sufficient. The "others" should be named.
The statute further provides that "Where the appellant shall not desire a supersedeas, it shall be sufficient if the appellant give bond to the opposite party with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in the penalty of five hundred dollars conditioned for the payment of all the costs of appeal in case the judgment or decree be affirmed as to such appellant." Here the amount of the bond is for only $100, which would have been sufficient, if, as permitted by the statute, appellant had prepaid the cost of the transcript. This was not done.
The decree of the chancery court was also against appellant's surety, United States Fidelity Guaranty Company, which same company is surety on the appeal bond. *646
This practice, permitting a surety against whom judgment was rendered in the lower court along with its principal there, to be surety upon the appeal to this Court, we have condemned in Jayne v. W.B. Nash Lumber Company,
The motion will be and is sustained, and the cause will be dismissed, unless appellant shall execute a proper appeal bond, consonant with our views above stated, within thirty days. Lovett v. Harrison,
So ordered.
Addendum
We sustained a motion to dismiss the appeal in this case,
However, instead of at once finally dismissing the appeal, we gave appellant another chance to maintain it here, by allowing him the right to file a new appeal bond, free from all three of the objections. On October 22, 1947, appellant filed a new appeal bond, but complying with only two of the conditions laid down in our opinion. He also filed here, for the first time, a certified bill for costs in the trial court, marked paid October 22, 1947, long after adjournment of the lower court, and forming no part of the appeal record.
He failed to obey the order of this Court as to the third condition, supra. The final decree of the Chancery Court *647 dismissed appellant's bill with prejudice, and entered judgment also that: "the complainant, W.T. Williams, and his surety . . . are assessed with all costs of this suit to be taxed by the clerk of this court and for all of which proper process may issue."
In our original opinion herein, granting appellant thirty days within which to comply therewith, we plainly and clearly said: "The decree of the chancery court was also against appellant's surety, . . . which same company is surety on the appeal bond. This practice, permitting a surety against whom judgment was rendered in the lower court along with its principal there, . . . we have condemned in Jayne v. W.B. Nash Lumber Company,
In the case cited, we approved and adopted this statement of the rule in 1 Enc. Plead. Prac. 1004 [
This is the rule adopted by this Court as stated, and as shown, is supported by general authority. The Supreme Court of Washington had before it the identical question here, and also held that where the surety on an appeal bond is a party against whom judgment was rendered, though it be a surety company, the bond is in effect without surety, and hence does not comply with the statute requiring sureties, and the appeal must be dismissed. Smith v. Beard et al.,
It was the duty of the appellant to comply with this long-established rule, and especially so, after we granted him thirty days within which to do so, on pain of the dismissal of his appeal. He could do nothing else. He could not thereafter avoid the rule after such an order of this court, or evade it afterward by paying the costs in the court below and seeking to introduce here, for the first time, original evidence of such fact. We held in a recent case that papers filed in a trial court, after its adjournment, were not part of the record and could not be looked to by the Supreme Court. Superior Oil Company v. Smith,
Appeal dismissed.