Opinion
No. 30421.
September 18, 1933.
APPEAL AND ERROR.
Supreme court has no power to reinstate appeal after term at which it was dismissed for want of prosecution.
Appeal from Judgment
W.H. Cox, of Jackson, for appellee.
The case was properly dismissed under Rule 20, not by the court, but at the instance of appellee. The appellant has no evidence of an agreement, within Rule 22, or orally, which I would honor if made, which tends to show that this case should not have been dismissed. Appellant's counsel's neglect is his own. I respectfully submit that the motion to reinstate the appeal should be overruled.
Lotterhos Travis, of Jackson, for appellant.
When this matter was before the court on the original motion to reinstate the appeal the matter was fully argued in the motions and affidavits in support thereof, and at that time the appellee did not avail itself of any question it may have had as to the jurisdiction of this court to entertain the motion to reinstate the appeal. Appellee ought not now be heard to complain of the court's action on account of a want of jurisdiction. When the appellee had an opportunity to be heard and said all that it had to say, it did not say aught as to the jurisdiction of the court.
The appeal in this case was dismissed for want of prosecution on January 30, 1933. A motion to reinstate was filed by appellant's present counsel on June 1, 1933, which motion was sustained by the court. A suggestion of error to this ruling, and a motion to vacate the judgment reinstating the cause was filed, and the matter was continued by order on the minutes.
When the case was dismissed on January 30, 1933, and that term of court ended on the first Monday in March, 1933, the power of the court to reinstate, or to have any further control over the matter, was at an end. Lane Standley v. Wheless, 46 Miss. 666.
Consequently, we erred in reinstating the appeal, and the suggestion of error is sustained and the appeal dismissed. Sustained.