In Bryant v. Associates Discount Corporation, 251 Miss. 1, 167 So.2d 657 (1964), an appeal had been made within the time allowed by Section 753, Mississippi Code 1942 Annotated (1956), but notice to the court reporter had not been made within the ten days allowed in Section 1640, as amended.Summary of this case from State v. Ridinger
September 28, 1964.
1. Contempt — statutes — appeal bonds.
Statute providing that person punished for contempt may appeal and supersede any fine by execution of bond not exceeding three hundred dollars is not limited to criminal contempt but applies to civil contempt as well, and a person appealing adjudication of civil contempt is not required to post five hundred dollar bond provided under statute governing civil appeals generally. Secs. 1152, 1162, Code 1942.
2. Contempt — same — same.
Statute providing for appeals in contempt cases is designed to protect person convicted of any type of contempt by fixing specific amounts for his appeal and appearance bonds, and by giving reviewing court a broader than usual review of decision of trial court. Sec. 1152, Code 1942.
3. Contempt — same — same.
The provision of statute that bond in amount not exceeding three hundred dollars shall be required on appeal from contempt adjudication limits amount of bond required to such amount notwithstanding that accrued costs exceed such amount, and statutory provision giving clerk or any party to suit right to ask for increase in amount of bond for costs where they will exceed five hundred dollars has no application on appeal from civil contempt adjudication. Secs. 1152, 1162, Code 1942.
4. Appeal — notice to court reporter — mental incapacity.
Appellant was not excused from compliance with statutory requirement of giving notice to transcribe notes to reporter within ten days after adjournment by fact that he was, in the month following expiration of the ten-day period, adjudicated non compos mentis; and the provision of the statute, fixing ninety days after rendition of judgment as the time within which to take an appeal, did not apply to toll the period. That statute saves to persons for whom a guardian ad litem has been appointed a period of two years after rendition of judgment. Secs. 753, 1640, Code 1942.
5. Limitation of actions — disability — absence of exception in statute.
Generally, unless statute of limitations contains savings clause, relief from its provisions on account of disability will not be granted, and any exceptions are strictly construed.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Copiah County, MIKE CARR, Chancellor.
S.E. Allen, Jr., Hazlehurst; Pyles Tucker, Jackson, for appellant-movee.
232 Miss. 18398 So.2d 451203 Miss. 283
33 So.2d 833; Durham v. State, 97 Miss. 549, 52 So. 627; Eure v. Taylor, 126 Miss. 155, 88 So. 514; Lewis v. Miller, 13 Sm. M. (21 Miss.) 110; Miller v. State, 106 Miss. 131, 63 So. 344; Nutt v. State, 95 Miss. 422, 49 So. 145; Shattuck v. State, 51 Miss. 54; Watson v. Williams, 36 Miss. 331; Wood v. Ratliff, 138 Miss. 783, 103 So. 356, 104 So. 156.
II. Appellant is entitled to the benefit of the provision of Section 753, Mississippi Code of 1942, in all respects.
III. It is improper for appellee to request the Court to determine the pleading which should have been filed, and then consider appellee's motion as if it were such appropriate pleading. Ex Parte Shed Castle, 248 Miss. 159, 159 So.2d 81; Insurance Savings Loan Assn. v. State, 242 Miss. 547, 35 So.2d 703.
104 F.2d 107193 Miss. 4689 So.2d 641125 Miss. 185 221 Miss. 54273 So.2d 107
II. The Chancery Court erred in trying the nature and title of movable property in a contempt proceeding. Baldwin v. Hosmer (Mich.), 27 L.R.A. 739; Burton v. Jergenson, 244 N.Y.S. 320, 138 Misc. 69; Dugas LeBlanc v. Port Barre Timber Tie Co., 144 La. 71, 80 So. 203; Greene v. Edgington, 37 Idaho 1, 214 P. 751; Groves v. Superior Court (Cal.), 145 P.2d 335; State Ex Rel Lloyd v. District Court, etc., 105 Mont. 281, 72 P.2d 1014; 17 C.J.S., Contempt, Sec. 85(4) p. 240.
III. The Chancery Court erred in holding that the air conditioners, electric heaters and freezer doors were a part of the realty and therefore covered by the deed of trust. American Laundry Machine Co. v. Citizens National Life Insurance Co., 107 Miss. 108, 64 So. 113; Berry v. Midtown Service Corp., supra; Boone v. Mendenhall Lumber Co., 97 Miss. 554, 52 So. 584; Hotaling v. Superior Court, supra; Levy v. Merchants Bank Trust Co., 124 Miss. 325, 86 So. 807; Weathersby v. Steeper, 42 Miss. 732; 17 C.J.S., Contempt, Sec. 12 p. 31; 59 C.J.S., Mortgages, Secs. 188, 190, 759 pp. 234, 244, 1395.
IV. The Chancery Court erred in holding that the air conditioners, electric heaters and freezer doors were in gremio and/or custodia legis. Allan v. Hargadine-McKettrick Dry Goods Co., 28 S.W.2d 670; Fearing v. Shafner, 62 Miss. 791; Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. 219; Orchard Wilhelm Co. v. North (Neb.), 280 N.W. 272; Rawlings v. American Oil Co., 173 Miss. 683, 161 So. 851; Troll v. City of St. Louis, 275 Mo. 626, 168 S.W. 167; Van Orden v. Golden West Credit Adjustments Co. (Cal.), 9 P.2d 572; Young v. Stoutamire (Fla.), 179 So. 797; 25 C.J.S., Custodia Legis, 68, 69.
V. The Chancery Court erred in applying the law governing torts committed by insane persons, and holding appellant liable thereby in a contempt proceeding. Felt v. Borodofski, 87 Miss. 727, 40 So. 816; Martin v. De Jarnette, 185 Miss. 76, 187 So. 202.
VI. The decrees of the Chancery Court are violative of the rights of appellant under the Constitution of Mississippi.
Overstreet, Kuykendall, Perry Phillips, Jackson, for appellee-movant.
221 U.S. 418 125 Miss. 715
A. The very language of Section 1152 indicates that it applies only to criminal contempt. Sec. 1152, Code 1942.
C. The proper sections for appeal in this case are Sections 1162 and 1163, Mississippi Code of 1942. Secs. 1162, 1163, Code 1942.
II. The notice to the court reporter to transcribe her notes was not given within the required time. Ivy v. Robinson, 220 Miss. 364, 70 So.2d 862; McGee v. State, 203 Miss. 609, 35 So.2d 628; Secs. 1226.8, 1640, Code 1942.
III. In the event that a motion to docket and dismiss is inappropriate for the relief asked under the circumstances, then the Court should consider the motion as a plea in bar of appeal, an exception to the appeal bond or a motion to strike the reporter's transcript. Avent v. Markette, 109 Miss. 835, 69 So. 705; Evans v. Hood, 195 Miss. 743, 15 So.2d 37; Ex Parte Shed Castle, 248 Miss. 159, 159 So.2d 81; Insurance Savings Loan Assn. v. State, 242 Miss. 547, 135 So.2d 703; Secs. 1672, 1976, Code 1942.
B. The decree was based on adequate legal authority. American Laundry Machine Co. v. Citizens National Life Insurance Co., 107 Miss. 108, 65 So. 113; Butane Gas System Co. v. Glisson, 194 Miss. 457, 10 So.2d 358; Crumbley Grocery Co. v. Ferguson, 159 Miss. 861, 132 So. 737; Frederick v. Smith, 147 Miss. 437, 111 So. 847; Howell v. General Contract Corp., 229 Miss. 687, 91 So.2d 831; In Re Theodore A. Kochs Co., 120 F.2d 603; John Van Range Co. v. Allen (Miss.), 7 So. 499; Levy v. Merchants Bank Trust Co., 124 Miss. 325, 86 So. 807; Love, Superintendent of Banks v. Union Central Life Insurance Co., 168 Miss. 408, 150 So. 794; Winn v. Eatherly, 187 Miss. 159, 192 So. 431; 22 Am. Jur., Fixtures, Secs. 3-6; Anno. 43 A.L.R. 2d 1378, 1379; 59 C.J.S., Mortgages, Secs. 188, 190.
C. Did the trial court on contempt adjudicate that these items were a part of the realty? Baldwin v. Hosmer (Mich), 25 L.R.A. 739; Dugas LeBlanc v. Port Barre Timber Tie Co., 144 La. 71, 80 So. 203; Greene v. Edgington, 37 Idaho 1, 214 P. 751; Groves v. Superior Court, 62 Cal. A.2d 559, 145 P.2d 355; Mississippi State Highway Comm. v. West, 181 Miss. 206, 179 So. 279; State Ex Rel Lloyd v. District Court, 105 Mont. 281, 72 P.2d 1014; 17 C.J.S., Contempt, Sub-Sec. 85(4) p. 240.
D. These items need not be specifically described in the deed of trust. 22 Am. Jur., Fixtures, Sec. 37.
II. This property was in the custody of the Court when removed by appellant. Adler v. Meyer, 73 Miss. 863, 19 So. 893; Cocks v. Simmons, 57 Miss. 183; Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 44, 159 So. 407; Palmer v. Texas, 212 U.S. 129, 53 L.Ed. 435, 20 S.Ct. 546; Schmitt v. Lamb, 48 F.2d 533; Wirtz v. Gordon, 187 Miss. 866, 184 So. 798; Sec. 849, Code 1942; Anno. 11 A.L.R. 2d 467; 50 C.J.S., Judicial Sales, Sec. 35, Sub-Sec. 39c; Griffith's Mississippi Chancery Practice, Sec. 655.
III. Removal of property in custodia legis does constitute a contempt of court. Berry v. Midtown Service Corp., 104 F.2d 107, 122 A.L.R. 1341; Cramer v. Lamb, 48 F.2d 537; Dewitt v. De Baun, 172 Miss. 113, 159 So. 552; Evans v. Evans, 193 Miss. 468, 9 So.2d 641; Hotaling v. Superior Court, City and County of San Francisco, 217 P. 127, 29 A.L.R. 127; Lamb v. Cramer, 285 U.S. 217, 76 L.Ed. 717; McComb v. Jacksonville Paper Co., 336 U.S. 87, 93 L.Ed. 599; Melvin v. State, 210 Miss. 132, 48 So.2d 856, 49 So.2d 837; Shelton v. State, 142 Miss. 118, 107 So. 553; Secs. 1278, 1656, Code 1942; 12 Am. Jur., Contempt, Sec. 22.
IV. The Chancery Court properly treated this contempt as a civil one. Boylan v. Detrio, 187 F.2d 375; Godard v. Babson-Dow Manufacturing Co., 319 Mass. 345, 65 N.E.2d 555; Gompers v. Buck's Stove Range Co., 221 U.S. 418, 55 L.Ed. 797, 31 S.Ct. 494, 34 L.R.A. (NS) 874; Parker v. United States, 153 F.2d 66, 163 A.L.R. 379; 12 Am. Jur., Contempt, Sec. 6; 17 C.J.S., Contempt, Sub-Sec. 5(2); Griffith's Mississippi Chancery Practice, Sec. 666.
V. The petition suggesting contempt was sufficient, and the trial court properly overruled the demurrers of appellant. 17 Am.Jur.2d, Contempt, Sec. 82; Griffith's Mississippi Chancery Practice, Sec. 667.
VI. Proof of intent is not necessary in a civil contempt. McComb v. Jacksonville Paper Co., supra; National Labor Relations Board v. Lawley, 182 F.2d 798; National Labor Relations Board v. Whittier Mills Co., 123 F.2d 725; Griffith's Mississippi Chancery Practice, Sec. 669.
VII. The previous adjudication of insanity is not a defense to this civil contempt. Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584, 21 So. 396; Deposit Guaranty Bank Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476; Deposit Guaranty Bank Trust Co. v. United States, 48 F. Supp. 369; Feld v. Borodofski, 87 Miss. 727, 40 So. 816; Hoye v. State, 169 Miss. 111, 152 So. 644; People of State of Illinois v. Burt, 257 Ill. App. 60; 29 Am. Jur., Insane Persons, Sec. 108; 53 Am. Jur., Trover and Conversion, Sec. 20.
VIII. Imposing a compensatory fine was proper. Secs. 1278, 1656, Code 1942; 17 C.J.S., Contempt, Sec. 94.
IX. The decrees do not violate any constitutional right of appellant. Edmonson v. Watson, 122 Miss. 450, 84 So. 455; Felder v. Felder's Estate, 195 Miss. 326, 13 So.2d 823; Sappington v. Sappington, 245 Miss. 260, 147 So.2d 494; Watson v. Williams, 36 Miss. 331; Sec. 30, Constitution 1890; 16 Am.Jur.2d, Constitutional Law, Sec. 388; 17 Am.Jur.2d, Contempt, Sec. 112.
ON APPELLEE'S MOTIONS TO DOCKET AND DISMISS APPEAL, AND TO STRIKE COURT REPORTER'S NOTES
The Chancery Court of Copiah County found appellant, Creel O. Bryant, guilty of civil contempt of court, for the wrongful removal of fixtures in custody of the court. Upon his failure to return them, the court held that appellee, Associates Discount Corporation, the owner, had been damaged $3500 by their removal. Bryant was fined that amount to be paid appellee for the damages sustained by it.
Appellee's motion to dismiss the appeal asserts that Bryant's appeal bond of $300 is insufficient and improper. It was filed well within the 90 days after rendition of the decree. Miss. Code 1942, Rec., § 753. It is claimed that the bond should have been made under Code section 1162, pertaining to civil cases without supersedeas, and requiring a $500 bond payable to the opposite party; that this is a civil contempt case, and governed by this statute.
However, Code section 1152 is an act which specifically applies to bonds in appeals from judgments for contempt:
"A person ordered by any tribunal, . . . to be punished for a contempt, may appeal to the court to which other cases are appealable from said tribunal, and may supersede any fine imposed, by the execution of a bond, payable to the state, with two sufficient sureties, to be approved by the tribunal appealed from, in a penalty to be fixed by said tribunal, not exceeding three hundred dollars, conditioned to pay the fine and costs, in case of affirmance in whole or in part; . . . ."
(Hn 1) On the other hand, sections 1162 and 1163 deal with appeal bonds generally in civil cases. The specific rather than the general statute governs here. Bryant's appeal from the judgment of civil contempt was based properly on section 1152. Its reference to a person "punished for a contempt" does not limit its application to criminal contempt. (Hn 2) Moreover, the statute is designed to protect a person convicted of any kind of contempt, by fixing specific amounts for his appeal and appearance bonds, and by giving this court a broader than usual review of the decision of the trial court. Ballew v. Case, 232 Miss. 183, 98 So.2d 451 (1957). Hence the appeal was properly taken under section 1152. (Hn 3) The next question is as to the sufficiency of the bond. Upon the clerk declining to approve the sureties, Bryant deposited $300 in cash with him. Appellee argues this amount is insufficient, because the accrued court costs, not including those in this court, are $775.
In general appeals of civil cases without supersedeas, section 1162 gives the clerk or any party to a suit the right to ask the trial court to increase the amount of a bond for costs, where they will exceed $500. It does not apply in this instance. Section 1152, in the same chapter of the Code, contains no such provision. On the contrary, it states that the appeal bond shall not exceed $300. At common law there was no right of appeal from a conviction of contempt of court. Watson v. Williams, 36 Miss. 331 (1858); Nutt v. State, 95 Miss. 422, 49 So. 145 (1909); 2 Am. Jur., Appeal and Error, § 118. The statute alone defines the terms and conditions of an appeal from a judgment of contempt. It was designed to assure to a person found in contempt of court a review on a feasible basis. Since the act provides the maximum amount of the appeal bond, without any provision for an increase, the $300 obligation, in compliance with it, is sufficient.
The trial court's decree was entered and the term ended on May 14, 1964. Appellant's notice to the court reporter to transcribe her notes was dated May 27, and was received by her on May 28. Code section 1640 provides that the reporter shall be notified within ten days after adjournment of court. Since the notice was given thirteen days after the adjournment, it was too late.
(Hn 4) Appellant asserts he is excused from failing to comply with this requirement, because in June 1962 he was adjudicated non compos mentis. Parenthetically, he was released from the hospital in August 1962. The chancellor found that since then he engaged in routine business, fully knew what he was doing at the time he removed the fixtures, and had sufficient mental capacity to understand the nature and consequences of his acts. Appellant claims that, since he had been found non compos mentis, he is entitled to have tolled the ten day period of section 1640. He refers to Code section 753, fixing ninety days after rendition of judgment as the time within which to take an appeal. That statute saves to persons for whom a guardian ad litem has been appointed a period of two years after rendition of judgment. In the instant case, the chancery court had appointed a guardian ad litem for Bryant, and he was represented by an attorney.
(Hn 5) There is no savings clause in favor of persons under disability in section 1640, requiring notice to the court reporter. Neither section 1640 nor 753 refers to the other. The general rule is that, unless a statute of limitations contains a savings clause, relief from its provisions on account of disability will not be granted. Exceptions are strictly construed. 34 Am. Jur., Limitation of Actions, §§ 201, 192; 54 C.J.S., Limitation of Actions, §§ 216, 242. Nor can the savings in section 753 be read into section 1640, pertaining to notice to court reporter. The legislature provided none in this instance. Since the notice to the court reporter was given too late, appellee's motion to strike the court reporter's transcript is sustained.
Appellee's motion to docket and dismiss appeal overruled; appellee's motion to strike the court reporter's notes sustained.
All Justices concur, except Patterson, J., who was absent.