Opinion
No. 39055.
January 25, 1954.
1. Appeal — supersedeas — jurisdiction — contempt — failure to comply with former decree.
Where an appeal with supersedeas was pending from decree of December 5, 1952, commuting into lump sum, alimony due under decree of February 6, 1950, and ordering attorney's fees and increased monthly support, Court was without jurisdiction to entertain petition to have defendant adjudged guilty of contempt for failure to comply with its decree of February 6, 1950, it having passed upon such matter in its decree of December 6, 1952.
2. Appeal — effect of — with or without supersedeas.
When statutory bond for appeal from decree of chancery court is given and approved, the case is ipso facto removed into the Supreme Court, and the successful party may, if the appeal is without supersedeas, proceed to execute on the decree, but, if it is with supersedeas, execution thereon is suspended.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Hinds County; L. ARNOLD PYLE, Chancellor.
Ernest Shelton, V.J. Stricker, Jr., Jackson, for appellant.
I. The lower court was without jurisdiction. Evans v. Hood, 195 Miss. 743, 15 So.2d 37; Jennings v. Shapiro, 131 Miss. 596, 95 So. 305; McDowell v. Minor, 159 Miss. 572, 132 So. 565; Sivley v. Sivley, 96 Miss. 134, 50 So. 552; Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So.2d 91; Turner v. Carter, 159 Miss. 496, 132 So. 333; Wade v. American Colonization Soc., 12 Miss. 670, 4 Sm. M. 670.
II. The decree of February 6, 1950, was superseded by and integrated into the final decree of December 5, 1952.
III. The plea of res adjudicata should have been sustained.
IV. Attorneys' fees should not have been allowed in the lower court, nor should they be allowed on appeal.
Marvin A. Cohen, Jewelle Scales, Jackson, for appellee.
I. Although appellant was granted an appeal with supersedeas (as a matter of right) from the 1952 decree, which modified the 1950 decree for alimony, the appeal with supersedeas could affect only the enforcement of the 1952 decree and did not destroy or suspend appellee's rights under the 1950 decree, more especially when appellant has never sought in any proceeding or by cross-bill to modify the 1950 decree in his favor. Belzoni Land Co. v. Robertson, 125 Miss. 338, 87 So. 669; Grayson v. Harris, 102 Miss. 57, 58 So. 775; Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372; Sec. 1163, Code 1942.
II. Appellee's allowance by the Court below for attorneys' fees to enforce alimony payments was correct, and appellee should be allowed attorneys' fees on appeal. Castleberry v. Castleberry (Miss.), 58 So.2d 69; Coulter v. Banks (Miss.), 38 So.2d 696; Gresham v. Gresham, 199 Miss. 778, 25 So.2d 760; Krasnow v. Krasnow (Conn.), 99 A.2d 104; Lord v. Lord, 37 N. Mex. 454, 24 P.2d 292; Sims v. Sims, 253 Ala. 307, 45 So.2d 25, 15 A.L.R. 2d 1246; Walters v. Walters, 180 Miss. 268, 177 So. 507; Sec. 2743, Code 1942.
This is an appeal by A.P. Lindsey from a decree of the Chancery Court of Hinds County, which, in response to the petition of Mrs. Jewel Noblin Lindsey, adjudged him guilty of contempt of court for failure to pay alimony.
The facts in connection with the origin and inception of this case are detailed at length in the opinion in the case of A.P. Lindsey v. Mrs. Jewel Noblin Lindsey, No. 38986, which was affirmed by this Court on January 11, 1954, and is reported in Miss. Advance Sheets, Vol. 48, page 8. In that case, the appeal was taken from the provisions of a decree of date of December 5, 1952, which required Lindsey to pay to Mrs. Lindsey (1) $500 as a lump sum settlement for all sums due her under the terms and provisions of former decrees and for application on her medical bills and other debts, (2) $100 per month thereafter for her support and maintenance, and (3) $150 for attorney's fees.
After the appeal in that cause had been perfected, with supersedeas, Mrs. Lindsey filed a petition for the enforcement of the terms of a decree of date of February 6, 1950, claiming that Lindsey was in arrears for support and other items due thereunder in the aggregate sum of $467.75. Notwithstanding the pending appeal with supersedeas, from the decree of December 5, 1952, wherein the arrears in alimony, medical expenses and other debts were commuted into a lump sum of $500, and wherein he was ordered to pay that sum, together with attorney's fees and an increased monthly support, the court heard the cause, and by decree of April 10, 1953, adjudged him to be guilty of contempt for failure to pay $567.75 and committed him to jail until he should pay the same. He was also ordered to pay attorney's fees.
(Hn 1) The trial court thus passed upon the same matters, in part, which had been determined in the previous decree of December 5, 1952. Since an appeal with supersedeas from that decree was pending, the court was without jurisdiction to consider this cause.
(Hn 2) When the statutory bond for appeal from a decree of the chancery court is given and approved, the case is ipso facto removed into the Supreme Court. The successful party may, if the appeal is without supersedeas, proceed to execute on the decree; but, if it is with supersedeas, execution thereon is suspended. See Sivley v. Sivley, 96 Miss. 134, 50 So. 552; McDowell v. Minor, 159 Miss. 572, 132 So. 565; Evans v. Hood, 195 Miss. 743, 15 So.2d 37; Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91.
It follows that this cause must be, and is, reversed and dismissed. Since attorney's fees were not allowable by the trial court, such fees cannot be allowed here.
Reversed and dismissed.
All Justices concur except Gillespie, J., who took no part.