Opinion
No. 31434.
October 8, 1934.
1. JUDGMENT.
Judgment, though entered by clerk when rendered, is subject to trial court's control and may be modified or vacated on seasonable motion for new trial or other proper motion challenging it.
2. APPEAL AND ERROR.
Judgment lacks finality putting statute of limitations respecting appeals into operation until final disposition of seasonable motion for new trial or other proper motion challenging it (Code 1930, secs. 13, 2323, 3361).
3. LIMITATION OF ACTIONS.
No statute of limitations runs against party until he is allowed by law to do thing as to which statute is interposed.
4. APPEAL AND ERROR.
While motion for new trial is unnecessary to obtain review of judgment in Supreme Court, unless made on grounds which would set aside or modify judgment and could not otherwise be considered by trial judge, complaining party has right to make motion and judgment is not final as respects appeal until trial court disposes of motion, if seasonably made (Code 1930, secs. 13, 2323, 3361).
APPEAL from the Circuit Court of Hinds County.
R.H. J.H. Thompson and L. Barrett Jones, all of Jackson, for appellee, on motion.
The appeal bond herein was placed on file and approved on April 4, 1934, prior to which date more than six months had expired after the date of the rendition of said final judgment.
Section 2323 of the Mississippi Code of 1930 provides that "appeals to the Supreme Court shall be taken within six months next after the rendition of the judgment or decree complained of, and not after, saving to persons under a disability of infancy or unsoundness of mind the like period after the disability shall have been removed."
The decision in the Mayflower Mills case is in absolute conflict with section 2323 of the Code of 1930. The language used in that section is that the appeal must be taken "within six months next after the rendition of the judgment or decree complained of and not after."
We believe our position is amply supported by 2 R.C.L., sec. 83, p. 107; 3 Am. Eng. Annotated Cases, pages 630 and 631; and by Hattiesburg Grocery Co. v. Thompkins, 111 Miss. 592; Ryals v. Thurman, 124 So. 432.
Chalmers Potter and Hamilton Todd, all of Jackson, for appellant, on motion.
Most of the states and the Supreme Court of the United States and federal appellate courts hold that an appeal is timely if taken within six months from the date of the overruling of a motion for a new trial.
Regardless as to the rule in other jurisdictions this question is forever settled in Mississippi in the case of Mayflower Mills v. Breeland, 149 So. 787. In this case there was a trial between the parties at the November, 1931 term of the circuit court of Copiah county at which term a judgment was rendered against the Mayflower Mills and in favor of one Breeland. During the term a motion for a new trial was made but there was no disposition of this motion until the July, 1932 term, the order overruling the motion of a new trial being entered August 10, 1932. The appeal was perfected November 4, 1932, which was nearly one year after rendition of the original judgment but within six months after the motion for a new trial was acted upon by the lower court.
Both under the decision of this court and under the majority rule of other jurisdictions as well as by weight of reason this appeal was made within time allowed by law and the motion to dismiss the appeal should be overruled.
Judgment was rendered and entered in the circuit court in favor of appellee on September 29, 1933. A motion for a new trial was made during the term, and, on October 10, 1933, also during the term, the motion was overruled, and an order was entered on the same day to that effect. On April 4, 1934, an appeal was taken to this court, which was more than six months after the rendition of the initial judgment, but was less than six months after the entry of the order overruling the motion for a new trial. Appellee has moved the court to dismiss the appeal, because not taken "within six months next after the rendition of the judgment" (section 2323, Code 1930), and the question is whether, in any event, the appeal must be taken within six months from the date of the entry of the judgment, or whether the six months run from the time of the entry of the order overruling the motion for a new trial.
At common law a judgment was not entered until all motions which challenged its validity or correctness were disposed of; and while under our practice the clerk enters the judgment when rendered, it is nevertheless subject to the control of the trial court, and may be modified or vacated by the court in response to a motion for a new trial, or other proper motion challenging the judgment, if the motion be seasonably made; and this control continues, as at common law, until the motion is finally ruled upon. O'Bannon v. Greenville Co., 159 Miss. 68, 71, 132 So. 87; Mayflower Mills v. Breeland, 168 Miss. 207, 213, 149 So. 787.
An appeal from a judgment in the circuit court is not allowed until that judgment is actually final (sections 13 and 3361, Code 1930); and since the judgment is under the control of the trial court until the motions mentioned are finally disposed of, it follows that not until that time does the judgment have that quality of finality which puts the statute of limitations in respect to appeals into operation. It would be an odd situation that an appeal should be allowable to this court, to set aside a judgment and grant a new trial, while a motion for a new trial remains pending before the trial court whereunder the trial court could, and perhaps would, do all that is sought by the appeal; and it would be an odd situation, too, if a case could remain pending in the trial court on an undecided motion for a new trial, and at the same time be pending in this court on appeal; and it is a familiar principle that no statute of limitations runs against a party until he is allowed by law to do the thing as to which the statute is interposed.
Appellee contends, however, that the motion for a new trial was unnecessary in this case, under section 3 of rule 6 of this court, and, being unnecessary, it must be disregarded. It is true that, except as to motions which introduce grounds which, if proved, would set aside or modify the judgment and wherein if not thus brought forward by such a motion, the trial judge would have no opportunity to pass upon the new matters so introduced (Justice et al. v. State (Miss.), 154 So. 265), a motion for a new trial is not necessary in order to obtain a review in this court. Nevertheless, the complaining party still has the right to make the motion for a new trial, and thereby to seek relief in the trial court; and when seasonably made the trial court must dispose of that motion, and until so done, the judgment remains, none the less, under the control of the trial court and, as respects the matter of appeal, is not final.
The rule, therefore, which prevails in most jurisdictions, that there is no final judgment, so far as concerns an appeal therefrom, so long as the cause is still under the control of the trial court by reason of the pendency of a motion for a new trial, or any motion of similar effect (3 C.J., p. 465), is correct, and we must decline to modify the opinion and decision in Mayflower Mills v. Breeland, supra, which is in accord with that rule.
Motion overruled.