Opinion
No. 35266.
February 15, 1943. Suggestion of Error Overruled March 29, 1943.
1. COURTS.
Where presiding judge did not sign minutes either during or on last day of regular term, and minutes were not signed until last day of second extension of term, orders extending term were invalid, and in legal effect minutes were signed in vacation.
2. JUDGMENT.
Where presiding judge did not sign minutes either during or on last day of regular term and minutes were not signed until last day of second extension of term, final judgment shown on minute book to have been rendered during regular term was invalid and case remained on docket as a pending and untried case.
3. APPEAL AND ERROR.
Where presiding judge did not sign minutes either during or on last day of regular term and minutes were not signed until last day of second extension of term, purported final judgment shown by minute book to have been rendered during regular term was not a valid "final judgment" from which an appeal could be taken (Code 1930, sec. 13).
4. APPEAL AND ERROR.
Appeals are not matters of right and are allowable only in cases provided by statute (Code 1930, sec. 13).
5. APPEAL AND ERROR.
Where an appeal will not lie under statute, jurisdiction cannot be aided either by consent or conduct of parties (Code 1930, sec. 13).
6. COURTS.
Where presiding judge did not sign minutes either during or on last day of regular term, action of judge in signing minutes on last day of second extension of term could not be considered as a correction of minutes "nunc pro tunc" or as an authority which he should be allowed to exercise in vacation.
7. APPEAL AND ERROR.
Generally, when there is no final judgment in record, the appeal will be dismissed.
8. APPEAL AND ERROR.
Where ostensible judgment in record was void because presiding judge had not signed minutes either during or on last day of term, appeal would not be dismissed, but cause would be remanded so that supposed judgment could be vacated upon record of case.
APPEAL from the circuit court of Bolivar county, HON. JOHN W. CRISLER, Judge.
Hugh F. Causey, of Cleveland, for appellant, L.G. Jackson.
The term of the court during which this case was tried was a valid term and the minutes of said court are valid.
When Sections 750, 755, and 732 of the Code of 1930 and the decisions of this court are harmonized, the minutes and the said term are valid.
See also Perry v. State, 154 Miss. 459, 122 So. 744; Williams v. Simon, 135 Miss. 562, 99 So. 433; Wilson v. Town of Hansboro, 99 Miss. 252, 54 So. 845; Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Graves v. Fulton, 7 How. (8 Miss.) 592; Healy v. Just, 53 Miss. 547; Frink v. Frink, 43 N.H. 508, 80 Am. Dec. 190, 191.
The circuit judge had the right to sign the minutes by nunc pro tunc entry or order.
Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837; Easterling v. State, 35 Miss. 210; Gray v. Thomas, 12 Smedes M. 111; Stokes v. Shannon, 55 Miss. 583; Hannon v. Henson, 7 S.W.2d 613; Dwight v. Hazlett, 107 W. Va. 192, 147 S.E. 177; Leuke's Est., 20 S.W.2d 552; O'Malia v. State, 207 Ind. 308, 192 N.E. 435; Elliott v. Plattor, 1 N.E. 222; Middleton Adm'r. v. Hensley, 52 S.W. 974; Lillard v. State, 53 S.W. 125; 21 C.J.S. 423, 424, 425, 426.
Jno. T. Smith and W.D. Jones, both of Cleveland, for appellant, G.H. Collins.
Where during period for holding of the regular term of circuit court, which convened on first Monday of April, 1942, civil case was tried and judgment entered thereon, presiding judge entered order on purported minutes of court on April 29, 1942, purporting to extend term to May 9, and on May 9 entered another order purporting to further extend term until May 23, and on May 18, 1942, after statutory term had expired on May 2, 1942, a motion was filed to quash trial, judgment and proceedings because presiding judge had not signed minutes and did not sign same while court was in session, and, therefore, there were no valid minutes showing a term of court had been held, denial of such motion was error.
Watson v. State, 166 Miss. 194, 146 So. 122; Grant v. State, 189 Miss. 341, 197 So. 826; Williams v. State, 179 Miss. 419, 174 So. 581; Code of 1930, Secs. 732, 750; Code of 1930, Sec. 473, as amended by Ch. 227 of the Laws of 1940.
Where regular term of circuit court began on first Monday of April, 1942, and expired by operation of law at midnight, May 2, 1942, and presiding judge did not sign minutes prior to expiration of statutory term, order which purported to extend term for two weeks was ineffectual and trial and judgment during purported regular term were void and of no effect, because statutory term was not legal as there were no signed minutes showing its existence, and therefore, the court was then in vacation and without authority to transact business.
Mississippi State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168; City of Grenada v. Grenada County, 167 Miss. 814, 150 So. 657.
Power of judge of court to extend statutory term provided by Section 732, Code of 1930, when once exercised is exhausted and an order attempting to extend an extended term is void, and, therefore, any acts done during such purported extension of extended term are done while court is in vacation, and this includes signing of minutes of court.
Williams v. Simon, 135 Miss. 562, 99 So. 433.
Breland Lowrey and Vincent J. Brocato, all of Clarksdale, for appellee.
This cause of action being tried during the regular term of court cannot be vacated and set aside because of failure of the trial judge merely to discharge ministerial act of signing the minutes during said term, when such minutes were read, approved and substantially verified during said regular term and actually subscribed during a lawfully constituted extended term.
Healy v. Just, 53 Miss. 547; 15 C.J. 980; Wigmore on Evidence, Sec. 2450.
Appellant is estopped to assert any alleged invalidity of the term of court at which the judgment complained of was rendered, having perfected and prosecuted an appeal to this court prior to the date of the expiration of the regular term.
James v. Woods, 65 Miss. 528, 5 So. 106; Hughes et al. v. Kaw Inv. Co., 129 Miss. 434, 91 So. 702; Moller-Vonderboom Lbr. Co. v. Board of Supervisors of Attala County, 138 Miss. 289, 103 So. 81; Childress v. Carley, 92 Miss. 571, 46 So. 164; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; Morrin v. Lawler, 95 F. 693; Merrifield v. Western Cottage Piano Co., 238 Ill. 526, 87 N.E. 379; Barnes v. Chicago Typographical Union, No. 16, 232 Ill. 402,
83 N.E. 932; 3 C.J., Appeal and Error, 1252, and cases cited thereunder.
Argued orally by Hugh F. Causey, for appellant, and Stovall Lowrey, for appellee.
The spring term of the circuit court of the second district of Bolivar county is fixed by law as beginning on the first Monday in April, and to continue for twenty-four days. The legal term for the spring of 1942 began, therefore, on Monday, April 6, 1942, and continued until Saturday, May 2, 1942. The court convened for the said term at the appointed time, and continued in session throughout the four weeks. But the presiding judge did not sign the minutes day by day throughout the term, nor did he sign the minutes on the last day of the term.
On April 29, 1942, during the lawful term, the judge made and signed an order extending the term for a further week, or until May 9, but as already mentioned he did not sign the minutes covering said order. The court, nevertheless, continued in session to and throughout May 9, 1942, on which day the judge made and signed another order, further extending the term until May 23, 1942. The court continued in session until May 18, 1942, on which day the presiding judge for the first time signed the minutes.
The case now before us on this appeal was tried during the regular term, and on the minute book there is a final judgment said to have been rendered on April 17, 1942, but which has never been authenticated and made a legal judgment for the reason, already mentioned, that the judge did not sign the minutes during or on the last day of the term. And not having signed the minutes, the orders extending the term were of no validity, with the result that when the judge did sign on May 18, 1942, he did so at a time which in legal effect was in vacation.
The law governing such a situation is sufficiently announced in Watson v. State, 166 Miss. 194, 146 So. 122, and Williams v. State, 179 Miss. 419, 174 So. 581. Applying what was said in those cases to the facts presented by the present record, no final judgment, valid in law, has ever been entered in the case at bar, and it stands on the docket of the circuit court as a pending and untried case. From which it further follows that inasmuch as appeals to this court from the circuit court can be taken only from final judgments, Sec. 13, Code 1930, we are without jurisdiction save as hereinafter mentioned. Appeals are not matters of right, and are allowable only in cases provided by statute. When under the statute it is clear that no appeal will lie, jurisdiction thereof cannot be aided either by the consent or by the conduct of the parties — the statute itself must supply the right, else it does not exist.
Appellee argues that the action of the trial judge in signing the minutes at the end of an invalid extended term should be considered as a correction of the minutes nunc pro tunc, and as an authority which he should be allowed to exercise in vacation. This contention is definitely refuted in the Watson case, supra, wherein it was said: "In view of the mandatory provision of this statute [Sec. 750, Code 1930], there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation." [ 166 Miss. 194, 146 So. 126.]
The general rule is that when there is no final judgment in the record, the appeal will be dismissed, Gabbart Co. v. Bauer (Miss.), 38 So. 548. In this record, however, there is an ostensible judgment, but which in law is no judgment at all; wherefore simply to dismiss the appeal would leave the apparent judgment still standing on the minute book, although unsigned, of the trial court. The appeal gives us jurisdiction to determine the question whether, upon the record before us, there is or is not a final judgment, and having determined that question in the negative, the proper order here is a reversal and remand, so that the supposed judgment shall be vacated upon the record of the case.
Reversed and remanded.