Sabougla Drainage Dist. No. 2 v. People's Bank & Trust Co.

Appellee moves to dismiss this appeal on the grounds (1) that appellant has not executed an appeal bond, and (2) inexcusable delay in filing the transcript in this court. Appellants resist the motion on the grounds, first, that appellant is not required, under the law, to execute an appeal bond; and, second, the delay in filing the transcript is excusable for the reasons hereinafter set out. The question of whether a drainage district is exempt from the general requirement to execute bond on an appeal to this Court is presented to us for the first time. Sections 28 and 29, Code of 1930, require bonds, and prescribe the terms thereof, in appeals, with and without supersedeas. *Page 340 Chapter 356, Laws of Mississippi 1938, reads as follows: "Section 1. Be it enacted by the Legislature of the State of Mississippi, That section 76, Mississippi code of 1930, be and the same is hereby amended to read as follows, to-wit: "`The state, and any county, city, town or village thereof, and the officials representing the state, county, city, town or village, in any suit or action, and any state, county, city, town or village officer who is a party to any suit or action in his official character, in which suit or action the state, county, city, town or village is beneficially interested, and the several incorporated charitable or educational institutions established and maintained by the state, and all corporate instrumentalities wholly owned by the United States government shall be entitled to appeal from a judgment, decree, decision, or order of any court or judge, from which an appeal may be taken, without giving an appeal-bond; and in such case, if an appeal-bond would operate as a supersedeas in favor of a private person, the appeal, without bond, shall have the same effect in the cases herein provided for; and this provision shall apply to all the courts of the state.'" There appears to be no exception, other than this, applicable to the case at bar, to the general requirement for the giving of bond as a prerequisite to appeals to this Court in civil cases. It will be noted that drainage districts are not named in the foregoing exceptions. They are not within the definition or meaning of those specified. It is true that this Court held in Standard Oil Co. v. National Surety Co., 143 Miss. 841,107 So. 559, that a drainage district is a political subdivision of the state; but that case dealt with a statute requiring, "That any person entering into a formal contract with this state, any county thereof, municipality therein, or any political subdivision whatsoever therein . . ." should execute a bond conditioned as the statute requires. We are not here considering a department, division, branch, instrumentality, or integral part, of the state, *Page 341 county or municipal governments, or the agents or officers thereof, in their official capacities. A drainage district is a separate, distinct legal entity; with power to sue and be sued as such in its corporate name (section 4450, Code of 1930), and is not excepted from the necessity of giving bond for appeal to this Court. But under section 3375, Code of 1930, as construed in Hudson, Ex'r, et al. v. Gray, 58 Miss. 589; State v. Coahoma Co.,64 Miss. 358, 1 So. 501; and Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810, it is within the power and discretion of this Court, in such cases, to permit bond to be executed on such terms and conditions as the Court may deem proper. On the second point, section 2323, Code of 1930, requires appeals to be taken within six months after rendition of decree or judgment from which the appeal is taken. The decree in this case was rendered May 20, 1940, which decree granted the appeal, and also a petition for appeal was filed November 1, 1940, reciting that the district was not required to execute bond. It appears from the record that the clerk and the official stenographer from time to time had conferences with counsel on both sides on what the record should contain, and received suggestions from both as to its contents; and that counsel for the movant, in the latter part of January, 1941, after examining the transcript of the evidence, requested the clerk not to forward the record to this Court until he could get the reporter to make some corrections therein. The record was filed here February 20, 1941. The return day of the appeal was the first Monday in January. It therefore appears that there was an effort in good faith to perfect the appeal, and no intentional delay by the clerk or counsel for appellant in having the record filed with the clerk of this Court, and there has been only a short delay in filing it, with no damage or prejudice to movant. Section 3382, Code of 1930, vests this Court with discretion in such circumstances. This case differs materially from Johnson v. Mississippi *Page 342 Power Co., 189 Miss. 67, 196 So. 642. There the appeal was from a judgment in the Circuit Court, and the only thing done within six months of the date of the judgment was the giving of notice of a desire to take an appeal. No bond was attempted to be filed, and no summons was issued on the appeal within the six months, and there was no question but that appellant was required to give bond. Here the appeal was granted by the Chancery Court in the same decree from which the appeal was taken; this was followed by a petition for appeal, and on November 1, 1940, counsel for appellee waived the issuance of summons on the appeal; and it is common knowledge that heretofore appeals by drainage districts have been had without appeal bonds, the right to do so not having been challenged until now. It is the earnest desire of this Court to have cases heard upon their merits, exacting, nevertheless, diligence and compliance with the law on the part of litigants. Each case, where we are permitted to use discretion, must be controlled by its own facts. Permission is given appellant to file here, within ten days, proper appeal bond, approved by the clerk below; failing in which, this appeal will stand dismissed. Overruled, with leave to file bond within ten days.