Opinion
No. 35191.
December 21, 1942.
1. APPEAL AND ERROR.
Appeal is solely a statutory right, and in absence of fraud or fault of opposing litigant, party desiring to appeal must pursue statutory method (Code 1930, secs. 587, 589, 725).
2. JUDGMENT.
Where plaintiff, desiring to appeal from adverse judgment, gave court reporter notice to transcribe notes of evidence and rulings of court and executed appeal bond but court reporter died without having complied with notice and presiding judge died without having signed bill of exceptions and plaintiff's attorney died about eight months after judgment was rendered without having prepared and sworn to bill of exceptions, the plaintiff was not entitled to decree setting aside the judgment since the failure of the plaintiff to get its case to the Supreme Court was its own fault and not that of the defendant (Code 1930, secs. 587, 589, 725).
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Green Green, of Jackson, for appellant.
Defendant's demurrer admits that plaintiff, appellant here, had a good and meritorious defense to the action at law, so that if a new trial should be granted, a different result would be reached. In addition however there is a bill of exceptions and agreement thereasto prepared by Simon Rosenthal in December, 1934, and we ask that this case be considered by this court on the merits of the claim of appellant as shown in the bill of exceptions.
If appellant has a meritorious claim, a judgment reversing and remanding this cause for a trial in the court below should be here rendered, for it is clear from the pleadings in this cause that the "accident" which resulted in appellant's inability to obtain a full hearing on appeal from the circuit court was not attributable to any negligence of appellant. Although the facts are clearly preserved and readily ascertainable from the bill of exceptions prepared (but never signed) by Simon Rosenthal, who at the time of the trial was the attorney of record for appellant, it was impossible on account of the three deaths involved for appellant to produce before this court a full and complete record. Notice to the stenographer was promptly given, but the stenographer died. The trial judge was authorized to sign the bill of exceptions, but he died before the stenographer. Both of these deaths occurred within the time allowed by law. Thereafter the attorney could have prepared and signed the bill of exceptions, but he died before signing the bill which he had prepared and thus through no fault of appellant there was no statutory procedure which it could utilize and it sought, and is now seeking, relief in a court of equity.
The "accidents" here occurring were beyond the control of the plaintiff, prevented him from obtaining proper relief in his action, and thereby constitute ground for relief in equity.
See Ford v. Ford, Walk. (1 Miss.) 505, 508; Hiller v. Cotton, 48 Miss. 593, 603; Compare Tatum v. Tate, 77 Miss. 684, 27 So. 647; Welch v. Hannie, 112 Miss. 79, 72 So. 861; Quarles v. Hiern, 70 Miss. 259, 12 So. 145; State v. Weiskittle, 61 Md. 49; Kansas, etc., R. Co. v. Fitzhugh, 61 Ark. 341, 33 S.W. 960, 54 Am. St. Rep. 211; People ex rel. Wright v. Judge, 41 Mich. 726, 49 N.W. 925; Grafton, etc., v. Davisson, 45 W. Va. 12, 29 S.E. 1028, 72 Am. St. Rep. 799; Leigh v. Armor, 35 Ark. 126; Little Rock, etc., v. Wells, 61 Ark. 354, 54 Am. St. Rep. 243; Galbraith v. Barnard (Ore.), 26 P. 1110; Hume v. Howie, 148 U.S. 245, 13 S.Ct. 582, 37 L.Ed. 438; Borrowscale v. Bosworth, 98 Mass. 34; Crittenden v. Schermerhort, 35 Mich. 370; Griffith's Mississippi Chancery Practice, Sec. 440; 5 Pomeroy's Equity Jurisprudence 4688, Sec. 2079; 12 Am. Eng. Cases 1056; 25 L.R.A. (N.S.) 860, Case Note.
See also Roots v. Cohen (Miss.), 12 So. 593.
Butler Snow, of Jackson, for appellee.
We begin with the proposition that in this state an appeal from a final judgment to the Supreme Court of the state is not a matter of right. We have no constitutional or statutory provision so making, and an appeal can be had only in the manner prescribed by statute; that is to say, a case can be removed from a trial court to the Supreme Court for review only in the manner provided by statute.
Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 130 So. 98; Worley v. Pappas, 161 Miss. 330, 135 So. 348; Mississippi Code of 1930, Secs. 587, 589, 725, 729.
This appeal has not been prevented by any accident. If it has been prevented at all, it has been prevented because the complainant did not avail itself of an open and obvious remedy afforded to it by statute.
An appeal is not a matter of right, but may be had only in the manner provided by statute.
See cases supra.
Since it is not charged that the failure to perfect the record on appeal was due to any act of the defendant, the complainant is not entitled to a review of the judgment except as provided by the statute.
Quarles v. Hiern, 70 Miss. 259, 12 So. 145; Germaine v. Harwell, 104 Miss. 679, 61 So. 659; Y. M.V.R. Co. v. Dampeer, 108 Miss. 451, 66 So. 814; McClanahan v. O'Donnell, 148 Miss. 478, 114 So. 336; Richmond v. Enochs, 109 Miss. 14, 67 So. 649.
Nor does the complaint charge sufficient facts in view of the solemn judgment of the circuit court to the effect that complainant has a meritorious case, or that a different result would be rendered if a new trial were granted.
See Welch v. Hannie, 112 Miss. 79, 72 So. 861; Hiller v. Cotton, 48 Miss. 593; Roots v. Cohen (Miss.), 12 So. 593; Sovereign Camp, W.O.W. v. Sloan, 135 Miss. 597, 99 So. 568; McClanahan v. O'Donnell, supra; Griffith's Mississippi Chancery Practice, Sec. 440.
Appellant, the bag company, brought suit in the circuit court of Hinds County against appellee, the oil company, to recover the sum of $1,000. There was a trial and judgment in favor of the oil company. From that judgment the bag company failed to perfect an appeal to the Supreme Court. The bag company filed its bill in this case in the chancery court of Hinds County to set aside that judgment for reasons set out, and to recover a judgment against the oil company on the same cause of action. The cause was heard by the chancellor on original, amended and supplemental bills, exhibits and demurrer thereto. The demurrer was sustained and the bills were dismissed. From that decree this appeal is prosecuted by the bag company.
The following is the case made by the bills: After the judgment in the circuit court the bag company complied with Section 725, Code of 1930, in reference to giving the Court Reporter notice to transcribe his notes of the evidence and rulings of the court for the purpose of an appeal to the Supreme Court, and in addition executed the appeal bond required by statute for that purpose, which was duly approved. The Court Reporter died without having complied with the notice. The presiding judge in the circuit court was W.H. Potter. He died without having signed a bill of exceptions in the case as provided by Sections 587 and 589, Code of 1930. There was still left to the bag company the right to a bill of exceptions prepared and sworn to by its attorney as authorized by Section 589. The bag company's attorney lived about eight months after the circuit court judgment was rendered and died without getting the case up to the Supreme Court in that manner. The applicable provision of Section 589, is in this language: "If the death, resignation, or other incapacity of the judge shall prevent him from signing a bill of exceptions, the affidavit of the attorney of record who represented the party tendering the bill of exceptions, and of all of them if more than one, that it correctly states the facts and rulings of the court, shall be received as a substitute for the signature of the judge to it; but in such case, if the appellee shall file in the Supreme Court an affidavit of himself or his attorney in the court below, that the bill of exceptions is not correct, stating particularly wherein it is not correct, he may file any affidavits than his own touching the matter, and the opposite party may do likewise up to the time of the call of the case for trial in the Supreme Court; and said court shall consider and determine, on submission of the case, both as to the truth of the bill of exceptions and the questions involved in what the court may determine to be the bill of exceptions."
There was no charge that these conditions were brought about either by the fraud or procurement of the oil company. The gravamen of the bag company's case seems to be a mistake. The governing principles are laid down by Griffith's Chancery Practice, Section 440, and McClanahan v. O'Donnell, 148 Miss. 478, 114 So. 336. When that case was decided the controlling statutes were the same as they are now. Paragraphs 2 and 3 of the syllabus in that case fairly state what the court decided. They follow:
"An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant to secure judgment or decree in his favor, party desiring to appeal therefrom must assume [sic pursue] remedy by statute.
"Since Legislature, under Hemingway's Code 1927, sec. 599, and Code 1906, sec. 796 (Hemingway's Code, sec. 594), has provided a plain and direct remedy for appellant in case of death of stenographer before filing copy of notes, or in case of failure to do so, and also for securing bill of exceptions in case of death, resignation, or incapacity of trial judge, remedy provided therein must be pursued by one desiring to appeal from an adverse ruling or decision, and appellants were not entitled to have original decree vacated and rehearing on ground that they were unable to prepare statement of evidence after the stenographer, who had taken greater part of evidence, absconded without filing transcript."
The failure of the bag company to get its case to the Supreme Court was the result of its own fault and not that of the oil company.
Affirmed.