Opinion
No. 32600.
February 22, 1937.
COURTS.
Appeal bond and notice to stenographer on appeal from judgment of county court which were filed within ten days from time order was entered overruling motion for new trial, but not within ten days after rendition of judgment held timely, since motion for new trial extended the judgment until the motion was disposed of and the judgment denying the new trial was a "final judgment" (Laws 1932, chap. 256, sec. 1, amending Code 1930, sec. 704).
APPEAL from circuit court of Jones county. HON. J.R. BUCHANAN, Special Judge.
H.H. Fuller, and Welch Cooper, all of Laurel, for appellant.
The record as originally filed does not show that the order overruling the motion for a new trial was entered on any particular date, but we have the certificate of the clerk sent up to perfect the record and it shows that the motion was overruled on the 22nd day of April, 1936. On April 30, 1936, appellant served notice on the stenographer to transcribe the notes of the testimony and file same with the clerk. On the same day an appeal bond was filed and approved by the circuit court. The record of the case was thereupon made up and transmitted to the circuit court on the appeal.
The court will note that the appeal bond was not filed within ten days after the date of the judgment. It was filed thirteen days after the date of the judgment. But it was filed within the ten days next succeeding the date of the order overruling the motion for the new trial.
Section 704 of the Code of 1930, amended by chapter 256 of the Laws of 1932, is controlling here.
On an appeal from the circuit court to this court the appellant has six months after the entering of the court's order overruling the motion for a new trial.
Mayflower Mills v. Breeland, 149 So. 787, 168 Miss. 207; Moore v. Montgomery Ward, 156 So. 875, 171 Miss. 420; Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801; O'Bannon v. Greenville Co., 159 Miss. 68, 132 So. 87; Young v. Alexander, 122 Miss. 643, 84 So. 697.
We submit that the final judgment within the meaning of that statute is that judgment overruling the motion for a new trial when seasonably made. The appeal having been taken within the ten days from that judgment the court was in error in dismissing the appeal. We, therefore, submit that the judgment of the court below should be reversed and the cause remanded.
B.F. Carter, of Laurel, for appellee.
Section 704 of the Code of 1930, as amended by the Laws of 1932, chapter 256, section 1, provides that appeals from county courts to the circuit courts shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the county court, provided, however, that the county judge may, within ten days, for good cause shown by affidavit, extend the time.
It is the contention of appellee that this statute is mandatory and jurisdictional. The circuit court cannot acquire jurisdiction of an appeal from the county court, unless the statute is complied with.
Flowers v. Trotlos, 160 So. 581.
We direct the court's attention to the fact that no motion, affidavit or other proceeding was filed by appellant asking for additional time within which to prosecute an appeal. The original judgment, and, we contend, the final judgment, within the meaning of the statute, as to a final judgment, was rendered on April 17, 1936; the motion for a new trial was filed, considered, and judgment rendered thereupon, on April 21, 1936, and then appellant waited nine days before making any attempt to take an appeal (on April 30, 1936). We contend that there was nothing to prevent appellant from taking the appeal within the ten days from said date of April 17, 1936, the date of the entry of the final judgment in the county court. We contend further that notwithstanding the fact that a motion for a new trial was filed by appellant on April 21, 1936, yet the judgment rendered on April 17, 1936, remained the final judgment of the court, and that the motion for a new trial being overruled, established said date of April 17, 1936, as the date of the entry of the final judgment.
Moore v. Montgomery Ward, 156 So. 875, 171 Miss. 420, and Mayflower Mills v. Breeland, 149 So. 787, 168 Miss. 207, are not at all in point here, because those were appeals from the circuit court to the Supreme Court.
We direct the special attention of the court to the language of the opinion of the court in the case of Mutual Health Benefit Assn. v. Cranford, 160 So. 878.
We contend that the judgment of the circuit court was correct, and we, therefore, ask that this cause be affirmed.
In the county court of Jones county, McCraw, the appellee, brought his action at law against the Laurel Oil Fertilizer Company for an unlawful conversion of his cotton. The county court rendered and entered a judgment in favor of the appellee against the appellant, Laurel Oil Fertilizer Company, on April 17, 1936. Four days later, on April 21, 1936, appellant filed a motion for a new trial. On April 22, 1936, this motion was overruled. On April 30, 1936, appellant served notice on the stenographer to transcribe the notes of the testimony and file same with the clerk; and on the same day an appeal bond was filed and approved by the clerk of the court. When this record of the county court reached the circuit court, the appeal was dismissed for the reason that the judge of the circuit court was of the opinion that the appeal bond was filed and the notice to the stenographer given more than ten days from the date of the entry of the final judgment, to wit, April 17, 1936.
It will be noted that a motion for a new trial was seasonably made in the county court on the 21st day of April, 1936, four days after the rendition of the judgment; and it will be noted further that within the ten-day period after the court overruled the motion for a new trial, the appellant filed its appeal bond and served notice on the stenographer.
In this state of the record we are of the opinion that the motion for a new trial was seasonably made, and that the appeal bond and notice to the stenographer were filed within ten days after the order was entered overruling the motion for a new trial, which was the final judgment in the case.
The statute governing appeals from a judgment of the county court to the circuit court is found in section 1, chapter 256, Laws 1932, amending section 704, Code 1930, the pertinent part of which reads as follows: "Appeals from the county courts shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, provided, however, that the county judge may within the said ten days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty days from the date of the said final judgment." In the case at bar, no affidavit was made, and no extension of time was allowed by the county court.
We are of the opinion that this case is controlled by the cases of Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; Moore v. Montgomery Ward Co., 171 Miss. 420, 156 So. 875; Mutual Health Benefit Ass'n v. Cranford, 173 Miss. 152, 156 So. 876. In the latter case, the court held that the motion for a new trial having been filed more than ten days from the entry of the judgment there under consideration, the original judgment was not extended by the motion for a new trial filed after the time for appeal had elapsed. Therein lies the distinction between the case at bar and that case. In the case at bar the motion for a new trial, seasonably made within the period of ten days allowed for appeal, extended the judgment until the motion for a new trial was disposed of, and the time for appeal was ten days from the date the judgment was entered overruling the motion for a new trial. The time for appeal had not elapsed when the motion for a new trial was filed.
The appeal in this case was prosecuted within the time fixed by the statute, and the circuit court had jurisdiction thereof.
Reversed and remanded.