May v. Layton

Kyle, J. This is a contested election case, and the appellee has filed a motion to dismiss the appeal on the grounds, (1) that the appeal bond was filed with the Clerk of this Court, when it should have been filed with the clerk of the circuit court, and (2) that the bill of exceptions was not filed within the seven day period allowed by the trial judge for the filing of same under Section 3185, Code of 1942. The appellant in his argument against the motion to dismiss the appeal says that the motion should be overruled for the reasons, first, that the appeal bond was properly filed with the Clerk of this Court, and, second, [131] that the delay of one day in filing the bill of exceptions with the Clerk of this Conrt is excusable for the reasons set forth in the certificate of the trial judge, dated October 29, 1951, which has been filed as a part of the record in this cause. The trial before the special court, which consisted of Honorable J. F. Guynes, Chancellor, and the three county election commissioners, was begun on October 15, 1951, and was completed on October 20, 1951, and a judgment was entered on the last mentioned date in favor of the contestant. On October 23, 1951, the trial judge signed an order granting to the contestee four days additional time within which to perfect his appeal to this Court; and on the same day the trial judge signed an order directing that a transcript of the record be made a part of the bill of exceptions and that the bill of exceptions be prepared and filed not later than October 27, 1951. The appellant filed his appeal bond in the sum of $300 with the Clerk of this Court on October 23, 1951. The bill of exceptions was presented to the trial judge and signed by him on Saturday, October 27,1951; and the bill of exceptions and the transcript of the testimony were filed with the Clerk of this Court on Monday, October 29, 1951. The four days additional time allowed by the trial judge in his order dated October 23, 1951, for the preparation and filing of the bill of exceptions, expired on Saturday, October 27, 1951. According to the certificate signed by the trial judge on October 29, 1951, the appellant’s delay in filing his bill of exceptions with the Clerk of this Court was due to the fact that the trial judge on October 27, 1951, was engaged in the trial of another election contest case in Marion County, and appellant’s attorney had to drive to Columbia on that day for the purpose of obtaining the judge’s signature to the bill of exceptions. The trial judge signed the bill of exceptions and approved the transcript of the testimony about 4:30 o’clock p. m., and appellant’s attorney was unable to return to Jackson in [132] time to file the hill of exceptions during office hours on that day. We think that the filing of the appeal bond with the Clerk of this Court within the time allowed by Section 3185, Code of 1942, constituted a sufficient filing of the bond, and that this Court thereby acquired jurisdiction to review the case on appeal. In the case of Evans v. Hood, 195 Miss. 743, 15 So. (2d) 37, this Court held that when the statutory appeal bond has been given and approved within the time allowed therefor, the case is ipso facto removed to the Supreme Court, although the record is yet to be transcribed and forwarded. The bond might have been filed in the office of the clerk of the circuit court. And if the bond had been filed in the office of the clerk of the circuit court, this Court would not have dismissed the appeal on that account. Evans v. Hood, supra. The statute is silent as to where the bond shall be filed. But, when the bond is properly executed and filed with the Clerk of this Court or with the clei’k of the circuit court, it is a valid and binding obligation, and there is no merit in appellee’s contention that the appeal should be dismissed because the bond was filed in the office of the Clerk of this Court, when it should have been filed in the office of the clerk of the circuit court. The second point argued by the appellee in support of his motion to dismiss the appeal is that the bill of exceptions was not filed in this Court within the time allowed by the trial judge for the filing of the same under Section 3185, Code of 1942. But we think that there is no merit in this contention. Section 1959, Code of 1942, provides that “An appeal to the Supreme Court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment, so as to perfect the appeal and obtain the judgment of the Supreme Court in the case; but the court may dismiss an [133] appeal for a failure of the appellant to do, within a reasonable time, what may be necessary to perfect his appeal.” And in the case of Sabougla Drainage District No. 2 v. Peoples Bank & Trust Co., 191 Miss. 331, 1 So. (2d) 219, 2 So. (2d) 573, the Court held that where there had been an effort in good faith to perfect an appeal in the manner provided by the statute, and no intentional delay by the clerk or counsel for the appellant in having the record filed with the Clerk of this Court, and there had been only a short delay in filing it, with no damage or prejudice to the movant, this Court, by Section 3382, Code of 1930, Section 1966, Code of 1942, was vested with discretion to overrule a motion to dismiss the appeal on the ground of inexcusable delay in filing the transcript in the Supreme Court. The principle applied in that case is amply supported by the decisions of this Court in the earlier cases of Hudson, Executor, v. Gray, 58 Miss. 589, 591; State v. Board of Supervisors of Coahoma County, 64 Miss. 358, 1 So. 501; and Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810. W. E. Gore and E. H. Cunningham, for appellant. E. L. & W. W. Dent, W. H. Watkins and Rex Mc-Raney, for appellee. The motion to dismiss the appeal is overruled, and the appeal will be considered by the Court upon its merits. Motion to dismiss appeal overruled.