Williams v. Simon, 99 So. 433

Williams v. Simon

99 So. 433 | Miss. | 1924

Smith, C. J.,

delivered the opinion of the court.

This is a suit in equity by which the appellee, the complainant in the court below, seeks to recover from the appellants damages for an alleged breach of a warranty against incumbrances contained in a deed by which the appellants conveyed certain real property to the appellee. A question that arises at the threshold of the case and which must be decided before the merits thereof can be reached is the validity vel non of the term of the court at which the decree appealed from was rendered.

Chapter 140, Laws of 1920, provides that the chancery court of Tunica county shall convene on the second Monday of December and continue for six days. On the second Monday of December, 1922, the chancellor of the district in which Tunica county is situated failed to ap*569pear at the place provided by law for the holding of court, and an order adjourning the court from day to day was entered each day by the clerk thereof until Thursday, the 14th day of December and the fourth day of the court, when, by virtue of a written order to that effect signed by the chancellor and entered on its minutes, the court was adjourned by the clerk thereof to the following Monday, December 18th. The chancellor, being engaged in the trial of a case in another county, failed to appear at the court on Monday, December 18th, but directed the clerk by telephone to adjourn the court until Wednesday, advising him that a written order to that effect had been mailed to him. Such an adjourning order was entered by the clerk on Monday’s minutes, and on the next day, Tuesday, the written order of the chancellor was entered on the minutes and the court then adjourned until Wednesday morning. The chancellor appeared some time during the day Wednesday and proceeded with the business of the court. Among the cases then .tried was the one here at bar; the trial of which was proceeded with over the vigorous protest of the appellants, who were defendants in the court below, and .who from a final decree against them have appealed to this court.

Section 989, Code of 1906 (section 709, Hemingway’s Code), is as follows:

“If the circuit judge or chancellor fail to attend at any term of the court, it shall stand adjourned from day to day until the fifth day, when, if the judge or chancellor shall not appear and open court, it shall stand adjourned without day; but, by virtue of a written order to that effect by the judge or chancellor, it may be adjourned by the clerk or sheriff to the next regular term, or to any earlier day, as the order may direct, and parties witnesses, and jurors must attend accordingly.”

In the absence of this or a similar statute, the failure of the judge or chancellor of a court to appear and open the court on the day fixed for the beginning of a term *570results in the lapse of the term. 15 C. J. 888; Palmer v. State, 73 Miss. 780, 20 So. 156. But because of this statute the order by which the court below was adjourned on Thursday, its fourth day, to Monday of the next week was valid. But when the chancellor failed to appear during the day set by him for the beginning of the adjourned term, the term lapsed, as the statute does not provide for the adjournment of an adjourned term from day to day in the absence of the judge or chancellor or to a later day on written order of the judge or chancellor so to do. The contention of counsel for the appellee in effect is that this statute applies, not only to the regular term of the court, but provides for and applies to subsequent successive adjourned terms thereof. That under it a term of court, though not held, need never lapse, as it can be kept continually alive by successive adjournments under written orders oi the judge or chancellor so to do. The statute does not so provide, and we cannot so hold. To so construe the statute would enable a judge or chancellor to keep every court in his district continually open, and it is hardly possible that the legislature contemplated that this should be the effect of the statute. An adjourned term is not a new term but simply a prolongation of a previous term (7 B. C. L. 990) and the power to prolong a term more than once is not conferred by this statute.

The decree of the court below is void, and the appeal therefore should probably be dismissed, but, to save any uncertainty as to the rights of the parties hereto that might result from a dismissal of the appeal, the decree of the court below will be reversed, and the cause remanded.

Reversed and remanded.

Andeeson and Holden, JJ., dissenting.