Nickles v. Kendrick

Woods, C. J., delivered the opinion of the court. The appellant, Nickles, in the year 1895, brought his action of unlawful detainer before the special court authorized by statute for the recovery of the possession of certain lands in Bolivar county, and obtained a judgment in his favor. From this judgment Kendrick, the appellee herein, appealed to the circuit court. At the November term, 1897, of the last named court, on motion of Nickles, Kendrick was required to give a [340] new bond with additional security. The order of the court provided “that if they [Kendrick and wife] fail to do so within sixty days from this date, then the appeal herein be dismissed.” This order was made on the twenty-fourth day of November, 1897, and the new bond was given on the twenty-fourth day of January, 1898, and, therefore, after the sixty days within which, by the order of the court, it was required to be given had expired, unless Sunday, the twenty-third day of January, on which the sixtieth day happened to fall, be excluded from the computation of time. Some time after the expiration of the sixty days the presiding justice of the peace in the special court which had tried and determined the unlawful detainer suit issued a writ of habere facias possessionem, directing the sheriff of Bolivar county to put Nickles in possession of the lands in controversy. Thereupon Kendrick filed his bill for and obtained an injunction restraining the execution of the writ of habere facias possessionem in the hands of the sheriff. The bill for injunction sets out the foregoing facts, with others, to which we think it unnecessary to refer. To this bill Nickles demurred and made answer, and to the answer, or parts of it, Kendrick filed exceptions. In vacation, before the chancellor, Nickles moved to dissolve the injunction, and his motion being overruled, he appeals from that action to this court. Two questions are presented by the appeal: (1) Was the bond required to be given by the circuit court within sixty days executed in time? and (2) if not given in time, did the order of the circuit court requiring an additional bond to be given in sixty days, on pain of dismissal of that appeal, operate to put an end to the .jurisdiction of the circuit court, and to put the case out of that court, and restore the jurisdiction of the special court which heard and determined the unlawful detainer originally to the extent of authorizing the presiding j ustice of that court to issue the writ of habere facias possessionem,? The answer to the first question depends upon the construe [341] tion of §1525,'code of 1892, which is in these words, viz.: ‘ ‘ When process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one day shall be excluded and the other included. When the last day falls on Sunday, it shall be excluded, but in other cases Sunday shall be reckoned in the computation of time. ’ ’ The statute first establishes a fixed rule of computation in cases where process is required to be served or notice given, and prescribes in these cases for the exclusion of the day of serving the process or giving the notice, and the inclusion of the day of appearance, thus following the rule of the common law. Then the statute prescribes the rule in all ‘ ‘ other cases, ’ ’ and departs from the fixed method of computation laid down in cases of serving process or giving notice—that is, of excluding the first day and including the last, and declares that one day shall be included and the other excluded, without undertaking to prescribe which day shall be included or excluded. One day must be included and one must be excluded, but which one shall be counted and which one shall not be counted the statute does not determine or declare in ordinary cases, for, ordinarily, it will be immaterial whether the first or the last day be counted. But to provide against the one exceptional case, in the “ other cases ” referred to, the statute declares that ‘ ‘ when the last day falls on Sunday, it shall be excluded, ’ ’ and, of necessity, the first day shall be included. The statute fixes the method of computation by its own terms in all ‘‘ other cases ’ ’ than those of serving process and giving notice, where the last day falls on Sunday. In such exceptional cases, the rule of indifference as to counting the first or last day is departed from, and the statute declares that the last and not the first day shall be excluded. Curtis v. Blair, 26 Miss., 309, was declaratory of the common law rule only, and is not authoritative in the pres [342] ent controversy, where a statutory rule is prescribed. It follows that the additional bond was not given within the sixty days. (2) Did the failure to give the bond, as required by the order of the circuit court, divest that court of its jurisdiction and revest the special unlawful detainer court or its presiding justice with authority to issue process on its judgment, which had been appealed from ? Section 91, code 1892, is as follows, viz.: ‘ ‘ In all appeals, and in proceedings of certiorari to the circuit court, thp said court, on motion of the appellee or obligee, may inquire ipto the sufficiency of the amount of the bond, and of the security thereon, and may, at any time, require a new bond, or additional security, on pain of dismissal. ” The statute affixes a penalty for failure to comply with the order of the court, and before the penalty can attach there must be an adjudication by the court of the fact of disobedience to its order, or failure to comply with it. The order requiring a new bond within a given time, on pain of dismissal, is purely interlocutory in its character, and is not conclusive and final. Until this preliminary order of the court has been followed up by an adjudication by the court of the fact of failure to comply with its order, and a final judgment dismissing the appeal, the case-remained in the circuit court and subject to the further .action of the court. Any other rule would inevitably result in strife and confusion, since without an adjudication by the court of the fact of failure to comply with its order, every private person and ministerial officer would make such adjudication for himself as fancy or interest might dictate. In Stevens v. Praed, 2 Cox’s Cases, 373, it was held that a case was not ipso facto out of court on a plaintiff’s failure to comply in time with an order of the court, though the order was that the bill was “ to stand dismissed ” if plaintiff did not comply, but that the defendant must, by motion or otherwise, apply for further directions before the case was out of court. Such was the opinion of Lord Thurlow also in the case of Cater v. Dewar, 2 Dickens’ Chancery Cases, 654. These cases are [343] directly in point. Because the appeal from the judgment of the special unlawful detainer case was still pending in the circuit court, the chancellor did not err in overruling the motion to dissolve the injunction. Some of the other questions discussed by counsel for appellees, in their brief, will be properly considered and determined in "the further progress of this case in the court below. Affirmed.