Opinion
No. 28737.
March 31, 1930.
1. APPEAL AND ERROR. Record. Filing. Time.
Appellant, though required to be prompt and diligent, has reasonable time after appeal is effectuated to get record in appellate court.
2. APPEAL AND ERROR. Bond. Defect. New bond. Appellant filing defective bond, in that it had only one surety, was granted ten days to supply proper bond ( Hemingway's Code 1927, section 3394).
Hemingway's Code 1927, section 3394 (Code 1906, section 4913) provides that bond on appeal may be permitted to be perfected within a reasonable time, to be allowed by appellate court.
APPEAL from circuit court of Lincoln county. HON.E.J. SIMMONS, Judge.
A.A. Cohn, of Brookhaven, for the motion.
Appellant, executed an appeal bond to the supreme court of the state of Mississippi, in the sum of four hundred dollars, signed by Purity Ice Cream Company, Inc., by Jas. W. White, secretary and treasurer, and E.A. Nalty. The said James W. White specially states that it was his purpose and intention to sign said bond as secretary and treasurer of said Purity Ice Cream Co., Inc., and to sign same individually, but inadvertently failed to sign his name individually.
J.N. Yawn, of Brookhaven, opposed.
As the appeal bond was signed by only one surety, the appeal should be dismissed.
Sec. 25, Hemingway's Code 1927.
The motion to docket and dismiss is on two grounds: First, that the record has not been filed in this court within six months from the day of the rendition of the judgment in the trial court; and, second, that there is only one surety on the appeal bond.
The record shows that the required notice was given the stenographer within the ten days required, and that the appeal bond was filed and approved within the six months allowed by statute from the date of the rendition of the judgment. The bond was given and approved on February 26, 1930. This motion was made on March 12, 1930, or only two weeks after the execution and approval of the appeal bond. Under all the recent decisions, although appellant must be prompt and diligent, after taking his appeal, which latter is effectuated by filing the appeal bond, he has thereupon a reasonable time to get the record into this court.
The appeal bond is defective in that it has only one surety. There is an affidavit before us explaining that oversight. Under section 3394, Hemingway's Code 1927 (section 4913, Code 1906), the bond may be permitted to be perfected within a reasonable time, to be allowed by this court. Appellant is granted ten days within which to supply a proper bond, in default of which the appeal will then be dismissed. Cleveland State Bank v. Exchange Bank, 118 Miss. 768, 79 So. 810.
Motion overruled.