Opinion
No. 34910.
March 23, 1942.
1. APPEAL AND ERROR.
A petition in writing for an appeal to the Supreme Court filed with the clerk of the trial court is one method of obtaining an appeal, but such a petition is not necessary to the validity of an appeal, and where no appeal bond is given or required, the appeal is considered to have been taken when the transcript of the record is filed with the Supreme Court clerk but not until that time (Code 1930, secs. 20, 26, 75, 2323).
2. APPEAL AND ERROR.
Where an administrator appealing from a decree dismissing his bill did not file a written petition for appeal with the clerk of the court below and did not file the record in the Supreme Court until more than six months after time during which appeal could be taken, appeal was barred by limitation before record was filed and appeal was dismissible on motion (Code 1930, secs. 20, 26, 75, 2323).
3. APPEAL AND ERROR.
Where clerk of court below was allegedly responsible for delay in filing transcript of record in the Supreme Court within time allowed for perfecting appeal, and appellant did not apply for a writ of certiorari directing clerk to file transcript when it was overdue, fact that clerk was negligent did not confer jurisdiction of appeal on the Supreme Court (Code 1930, secs. 20, 26, 2323).
APPEAL from the chancery court of Tunica county, HON. R.E. JACKSON, Chancellor.
Lester G. Fant, of Holly Springs, for appellant.
Section 725 provides that notice shall be given within ten days. This was complied with, and the appellant should not be charged with dereliction on account of the notes not being filed within six months. The statute law of the State of Mississippi gave the appellant the right to appeal from the final decree. Neither the chancellor nor the Supreme Court would have a right to deny him the right to appeal. By statute, he is relieved from giving bond; consequently, he would not have to file any bond, and since he has done everything he could to prosecute his appeal and the delay was cause by the stenographer and not by the appellant, we respectfully submit that the motion should be dismissed.
Dulaney Bell, of Tunica, for appellees.
No petition for an appeal was ever presented by the complainant to the chancery court of said Tunica county, nor did said complainant file any bond with the clerk of the chancery court of said Tunica county within six months next after the rendition of said final decree, nor at any time thereafter, nor did said complainant file or cause to be filed with the clerk of the Supreme Court a transcript of the proceedings in the chancery court of said Tunica county within said time. Since none of these was done we respectfully submit that this appeal should be dismissed.
Sabougla Drainage District v. Peoples Bank, 191 Miss. 331, 1 So.2d 219; Miss. Code of 1930, Secs. 20, 21, 26, 75 and 2323.
Argued orally by Lester G. Fant, for appellant, and by J.W. Bell, Jr., for appellee.
The appellees have filed a motion to dismiss this appeal. The facts bearing thereon are in substance as follows:
The appellant, as the administrator of the estate of a decedent, filed a bill of complaint against the appellees. The case was taken under advisement by the court below for a decree in vacation, and a decree dismissing the bill was rendered on the 14th day of December, 1940. No petition for an appeal was filed with the clerk of the court below and no bond therefor was given. The record was filed in this court on November 18, 1941. No bond for an appeal is required of an executor or administrator. Section 75, Code 1930. While a petition in writing for an appeal to this court filed with the clerk of the trial court is one method of obtaining an appeal, such a petition is not necessary to the validity thereof; and where no appeal bond is given or required, the appeal is considered to have been taken when, but not until, the transcript of the record in the case is filed with the clerk of the Supreme Court. Sections 20 and 26, Code 1930. Had this appellant filed a written petition for the appeal with the clerk of the court below, or had the record been filed in this court within six months during which an appeal can be taken under Section 2323, Code 1930, that statute would have been complied with; but the failure here to do either has resulted in the appeal being barred by limitation before the record was filed in this court, consequently the motion to dismiss must be sustained. Miller v. Phipps, 152 Miss. 437, 119 So. 170.
The appellant's answer to the motion is, in substance, that he notified the stenographer of the court below to file a transcript of the evidence and paid him his charges therefor, which was all that he had to do to perfect the appeal, and that the delay in the filing of the record in this court should be charged not to him, but to the clerk of the court below. The clerk of the court below was negligent, but that fact does not confer jurisdiction on this court. The appellant could have saved the situation when the record became overdue in this court, which it did quite a while before it was filed, by applying for a writ of certiorari directing the clerk to file it.
Appeal dismissed.