Opinion
No. 30507.
March 20, 1933.
APPEAL AND ERROR.
Summons and severance requirement of statute respecting appeal is procedural only, and not jurisdictional, purpose being to prevent splitting of appeals (Code 1930, section 22).
APPEAL from Chancery Court of Adams County.
Brandon Brandon, of Natchez, for appellee, on motion to dismiss.
This appeal has not been properly taken and perfected and the court has no jurisdiction of same, and the appeal is now barred by statute of limitation, because other joint judgment debtors did not join in appeal and there has been no summons and severance had to other joint judgment defendants.
Mississippi Code of 1930, section 2323; Mississippi Code of 1930, section 22; Flournoy, v. Burke et al., 4 How. 337; Henderson v. Wilson, 4 S. M. 732; Preira et al. v. Silva, 4 S. M. 735; Thomas v. Wyatt, 9 S. M. 308; Green et al. v. The Planters Bank, 3 How 43; Tardy et al. v. Rosenstock, 118 Miss. 720, 80 So. 1; United States Fidelity Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456; Wilkinson v. Love, 149 Miss. 523, 115 So. 707.
This appeal not having been perfected in the manner and within the time provided by the statutes of this state this court is without jurisdiction to entertain the appeal.
Turner v. Simmons, 99 Miss. 28, 54 So. 658; Williams v. Meridian Light Ry. Co., 114 Miss. 73, 75 So. 59; Beasley v. Cottrel, 94 Miss. 253, 47 So. 662.
Wells, Jones, Wells Lipscomb, of Jackson, for appellant, on motion to dismiss.
Appellee seems to take the position that the six months' statute of limitations for taking appeals controls. Such is not the case. The statute, section 2323, Code of 1930, simply provides that an appeal must be taken within six months by the person so desiring and the filing of the bond satisfies the requirement under numerous decisions of the court.
Farish v. Davis, 124 Miss. 711; Turner v. Weaver, 126 Miss. 496.
Neither is there any rule in this state which requires the court to dismiss the appeal of one party simply because the others have not joined in it or been summoned as provided by section 22, Code of 1930.
Tardy v. Rosenstock, 118 Miss. 720.
The failure to have a summons issued for J.V. and R.T. Burkes within the six months is not jurisdictional. There is no statute in this state so making it.
This is an appeal by one of several parties against whom a decree was rendered in the court below. There has been no summons and severance as required by section 22, Code 1930, and the time within which appeals to the Supreme Court can be taken has expired. The appellee requests that the appeal be dismissed.
The summons and severance requirement of the statute is procedural only, and not jurisdictional, Wilkinson v. Love, 149 Miss. 523, 115 So. 707; its purpose being to prevent the splitting of appeals with the inconvenience and difficulties resulting therefrom. Any inconvenience or difficulty that would result from an appeal being taken by parties to this decree has disappeared, for they are now without the right so to do.
The motion will be overruled, and the case set for April 17, 1933.
Overruled.