Opinion
No. 31639.
March 25, 1935.
COURTS.
Under statute requiring that appeals from county court to circuit court be made within ten days from entry of final judgment unless county judge extends time, circuit court held not to have jurisdiction where appeal was filed more than ten days after entry of final judgment, in absence of affidavit asking for extension of time, since statute is mandatory (Code 1930, section 704, as amended by Laws 1932, chapter 256, section 1).
APPEAL from the circuit court of Warren county.
HON.E.L. BRIEN, Judge.
Action between Mrs. Eddie Flowers and Tom Trotlos. From a judgment in favor of Tom Trotlos, Mrs. Eddie Flowers appeals. Affirmed.
Harry K. Murray, of Vicksburg, for appellant.
The contention of appellant is that the appeal from the county court to the circuit court was perfected upon the filing of the bond in this cause. Appellee had moved to dismiss the appeal in the county court and, upon hearing the motion, the county court granted appellant ten days to substitute a new supersedeas bond.
The county court could only speak through the minutes of the court.
Lackey et al. v. St. Louis S.F.R. Co., 102 Miss. 339, 59 So. 97; Oliver v. Miles, 144 Miss. 852, 110 So. 666.
The counsel for appellant relied upon the rule of the county court and upon the order of the county court and filed her bond in due time — the time specified in the order of the county court.
Appellant relied upon the procedure and upon the rule of the county court regarding the time for the filing of the new bond on appeal to the circuit court; the county court could have reversed its holding at any time and, under the procedure and rules, appellant could do nothing but wait until the judgment of the county court was rendered and entered upon the minutes before perfecting the appeal from the judgment and filing the bond.
Section 3375, Code of 1930. Wm. I. McKay and Leonard E. Nelson, both of Vicksburg, for appellee.
By virtue of the court's definite provision, providing the penalty upon failure to file the bond within the time required by the order, the appellants are unable to avail themselves of the benefits of section 3375, Code of 1930.
In this state the rendition of the judgment is the pronouncement of the judgment of the court at the conclusion of the trial, and it is not the entry of the judgment on the docket that constitutes the rendition of the judgment.
Simpson v. Boykin, 118 Miss. 701, 79 So. 852.
In courts of law the date of the rendition of the judgment is the date "when the court signifies its assent to the sentence of the law as a result of the proceedings in the case."
Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521; Simpson v. Boykin, 118 Miss. 701, 718, 79 So. 852; Clark v. Duke, 59 Miss. 575, 579.
Final judgment for appellee was rendered by the circuit court of Warren county on a claimant's issue against appellant and the sureties on her forthcoming bond. From that judgment appellant prosecutes this appeal.
Appellee recovered a judgment in the county court of Warren county against Clark Flowers, the husband of appellant, for the sum of six hundred seventy-seven dollars and fifty cents. On that judgment execution was issued and levied on certain personal property. Appellant claimed that the property belonged to her and not to her husband, and was therefore not subject to be taken under the execution; she filed her claimant's affidavit accordingly with forthcoming bond, and kept the property. The judgment of the county court was rendered and entered on the 27th day of June, 1934. From that judgment appellant attempted to appeal to the circuit court, and to that end gave an appeal bond with supersedeas on the 10th day of July, 1934, more than ten days after the final judgment was rendered. Appellee made a motion to quash and vacate the supersedeas bond for causes unnecessary to refer to. That motion was heard on the 29th day of August, 1934, and overruled upon condition that appellant execute a new appeal bond with supersedeas within ten days from that date. Appellant attempted to comply with that leave, executed another appeal bond with supersedeas on September 8, 1934, and filed the same with the clerk on that day.
There was no affidavit by appellant filed within ten days from the rendition of the final judgment in the county court asking for additional time within which to prosecute the appeal. Section 704, Code of 1930, as amended by Laws 1932, chapter 256, section 1, provides that appeals from county courts to the circuit courts shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the county court, provided, however, that the county judge may, within the ten days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty days from the date of the final judgment. Regardless of which bond is considered, whether the first one or the last one, more than ten days from the entry of the judgment attempted to be appealed from had expired when it was executed, and there was no affidavit by appellant filed within the ten days asking for an extension of time. In fact, she filed no affidavit at any time asking for an extension. The statute is mandatory and jurisdictional. The circuit court cannot acquire jurisdiction of an appeal from the county court, unless the statute is complied with. Appeal must be taken within ten days from the entry of the final judgment, or the time extended on affidavit within ten days showing good cause for the extension.
Affirmed.