Opinion
No. 37743.
October 9, 1950.
1. Appeal — record — return day — certiorari.
When the return day for the record has passed and the record has not been filed it is negligence not to apply for certiorari, and it is erroneous to assume that the application therefor may be delayed.
2. Appeal — undue delay in filing record — dismissal.
When the filing of the record on appeal has been delayed until four return days have intervened it will be deemed that the appellee has been prejudiced because of failure to prosecute the appeal with diligence, and in the absence of a sufficient showing of excuse for the default, the appeal will be dismissed.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Coahoma County; R.E. JACKSON, Chancellor.
For the motion:
Brewer Brewer.
In the instant case the return day passed and appellant still did not take any steps to see that the record was brought up to this Court or to summon appellees. The next succeeding return day also passed and the appellees still had not been summoned, and the record still had not been filed with the Clerk. On November 3, 1949, appellees accepted process but the appellant still took no steps to see that the record was brought up. Instead, appellant allowed the third and fourth return days subsequent to the taking of the appeal to pass without taking any steps to bring the record up. Finally on March 11, 1950, after a delay of over eight months and the passing of the interim four preceding return days the record was filed with the Clerk of this Court.
In order to prevent this very same type of delay the Legislature enacted Sec. 1966, Code 1942. This statute has been applied by this Court in situations identical with that presented in the present case. Miller v. Phipps, 152 Miss. 437, 119 So. 170; Walden v. State, 127 Miss. 486, 90 So. 177; Turner v. Weaver, 126 Miss. 496, 89 So. 153; Yazoo Mississippi Valley R.R. Co. v. McGraw, 118 Miss. 850, 80 So. 331. In each of the above cases this Court dismissed the appeal because of a delay in filing the record after the appeal bond was given. The reason given for dismissing the appeal was stated clearly and concisely by this Court in Miller v. Phipps, supra, in the following language: "It is necessary for the public welfare, that litigation be disposed of without undue delay, and in former decisions of this Court it has been held that where a return day has passed, and there have been more than six months between the perfecting of the appeal and the application for writ of certiorari, the Court would refuse to grant such application and would dismiss the appeal."
And in the case of Newman Lumber Co. v. Lucas, 108 Miss. 784, 67 So. 216, the Court said that an appellant is negligent in not applying for a writ of certiorari when the return day for the record in this Court has passed.
Appellant does not deny that he has been negligent and offers no excuse for having been negligent. Instead, appellant apparently attempts to invert established legal procedure by urging that the appellees must show the manner in which they have been prejudiced before this Court will consider the fact that appellant has negligently or willfully delayed the administration of justice. Such a proposition, once it became legally established, could only serve to invite unsuccessful litigants to delay the course of justice if for no other reason than to harass the opposing litigant. The attitude of this Court has been clearly expressed in the case of Walden v. State, 127 Miss. 486, 90 So. 177, where in speaking of appellant's failure to apply seasonably for a writ of certiorari the Court said, "The appellant is in default in applying for the writ, and where an appellant is in default a specific showing of what steps have been taken by the appellant to procure the record should be shown; and if no steps have been taken, it should set forth a proper showing why none were then taken. Where the appellant is in default, some showing should be made to excuse such default."
Appellant states in his brief that, "this cause could not have been reached during the term immediately past and could not be reached sooner during the present term if appellant had applied for a writ of certiorari." Appellant does not mention that this cause should have first appeared on the docket before the September, 1949, Term of this Court, and that the present term constitutes the third term of this Court since the July 1949 return day to which this cause was returnable. Appellant also seemingly ignores the procedure of this Court under Rule 9, whereby all civil cases are called for argument and submission in the order in which they stand on the docket. Thus, had the appellant complied with his duty and applied for a writ of certiorari immediately following the July 1949 return day this cause would have appeared on the docket on or before the September 1949 Term of this Court. As a result of appellant's negligence the order of this cause on the docket has been delayed at least two terms of Court, thereby placing the case far down on an already crowded docket.
Contra:
J.W. Kellum.
Prejudice to the rights of movant is necessary to the dismissal sought by movant herein.
This motion is filed by appellees pursuant to Sec. 1966 Code 1942, and in construing this section, this Court has repeatedly held that the party seeking to dismiss an appeal on the grounds urged by this motion must show prejudice as a result of said delay before he is entitled to a dismissal of the cause. Yazoo M.V. Ry. v. McCarley, 106 Miss. 92, 63 So. 335; Yazoo M.V. Ry. v. McGraw, 118 Miss. 850, 80 So. 331; Newman Lumber Co. v. Lucas, 108 Miss. 784, 67 So. 216. In the McCarley case, supra, and many of our cases involving this type of motion, our Court has likewise held that even if prejudice is shown by the appellee the appeal will not be dismissed by this Court, if appellant shows that he was guilty of no negligence in the matter.
The condition of the docket of this Honorable Court is such, and this Court may take judicial notice thereof, that this cause could not have been reached during the term immediately past and could not be reached sooner during the present term if appellant had applied for a writ of certiorari. See McCarley case, supra.
Appellees filed a motion to docket and dismiss the appeal in this case.
The final decree appealed from bears the date of April 19, 1949. The bond for appeal was approved April 25, 1949. The transcript was approved by appellees on June 23, 1949. The record was filed with the clerk of this court on March 11, 1950.
Under Sections 1942 and 1955, Code of 1942, the return days for civil cases are the second Monday of September and the first Monday of March, and such others as the court may designate. By Rule 35 of this Court, additional return days are the first Mondays of January, May and July.
From April 25, 1949, the date of the approval of the bond for appeal, until March 11, 1950, the date of the filing of the record here, four return days — the first Monday of July, the second Monday of September, the first Monday of January and the first Monday of March — intervened. The record discloses no act whereby the appellant sought to have the record filed in this court at an earlier date.
But it is contended, in answer to the motion, that a copy of appellant's brief has been in the hands of the appellee for six months; that prejudice must be shown before a dismissal will be granted; that even though prejudice may be shown, a dismissal will not be allowed, if appellant is guilty of no negligence; and that, on account of the congested condition of the docket, the cause could not have been reached during the past term.
(Hn 1) It was negligence not to apply for certiorari when the return day for the record in this court had passed. Newman Lumber Co. v. Lucas, 108 Miss. 784, 67 So. 216, 451. When the record is not on file by the return day, it is error to assume that an application for aid of this Court may be delayed. Miller v. Phipps et al., 152 Miss. 437, 119 So. 170. (Hn 2) The disposition of this cause has been unduly delayed to appellee's prejudice, because of failure to prosecute the appeal with diligence. Yazoo M.V.R. Co. v. McGraw, 118 Miss. 850, 80 So. 331; Turner v. Weaver, 126 Miss. 496, 89 So. 153. There is no sufficient showing of excuse for the default. Walden v. State, 127 Miss. 486, 90 So. 177.
Consequently, under the provisions of Section 1966, Code of 1942, the appeal ought to be, and is, dismissed.
Motion sustained and appeal dismissed.