Wilkinson v. Love , 149 Miss. 523 ( 1928 )

Cook, J.

The appellee, J. S. Love, superintendent of banks, and the liquidating agent of the Shelby-Citizens’ Bank & Trust Company, instituted suit in the chancery court of Bolivar county against J. L. Wilkinson, M. L. Wilkinson, and Louise Neely, trustee, seeking to estab-. lish priority of the lien of a certain deed of trust executed by Mrs. M. C. Wilkinson in favor of the Shelby-Citizens’ Bank & Trust Company, and also seeking an injunction to restrain the foreclosure of a deed of trust of prior date executed by the said Mrs. M. 0. Wilkinson to J. L. Wilkinson, and by him assigned to M. L. Wilkinson. Thereafter Mrs. M. C. Wilkinson filed a bill against the said J. S. Love, liquidating agent, praying the issuance of a writ of injunction restraining the foreclosure of the deed of trust in favor of the bank until the priorities of the two deeds of trust could be determined and established.

Preliminary injunctions were issued in these causes, and upon motions being made to dissolve them, the causes were, by agreement of the parties, consolidated, and submitted as if on final hearing; and a decree was entered holding that the deed of trust given by Mrs. M. C. Wilkinson to the Shelby-Citizens’ Bank & Trust Company was a lien on the property covered thereby superior to the deed of trust executed by her to J. L. Wilkinson, and making perpetual the injunction restraining J. L. Wilkinson, M. L. Wilkinson, and Louise Neely, trustee, from foreclosing the deed of trust held by M. L. Wilkinson; and from this decree J. L. Wilkinson prayed for and was granted an appeal, which he perfected by executing a proper bond. Mrs. M. C. Wilkinson, M. L. Wilkinson, and Louise Neely, trustee, executed no appeal or supersedeas bond, and did not otherwise seek to secure or join in an appeal.

When the cause came on for hearing in this court, a decree was entered reversing and remanding the cause on the ground, as stated in the opinion, that:

“J. L. Wilkinson was a witness and a party to both proceedings. The court directed J. L. Wilkinson, under the rule, to retire from the court room, and refused to permit him to remain in the court room. This action of the court is assigned as error, and was excepted to in the lower court. ... It was reversible error to have refused J. L. Wilkinson the right to remain in the court room during the trial of the case.”

A suggestion of error has been filed, in which it is pointed out that the decision of the court is based on a misconception of facts as to the action of the court below, as shown by the record; that the record discloses that J. L. Wilkinson was not excluded from the court room at any stage of the trial; and, consequently, since no error was committed against the said J. L. Wilkinson, the sole appellant, he cannot complain, and is not entitled to a reversal of the cause. The fact is, that the record discloses that J. L. Wilkinson was not excluded from the court room, but it was Mrs. M. C. Wilkinson and M. L. Wilkinson who were excused while the said J. L. Wilkinson was testifying as a witness. This being true, no error was committed against J. L. Wilkinson, and, since he was in no way prejudiced thereby, he cannot take advantage of any error against the other parties to the proceeding who have not joined in the appeal. The suggestion of error will therefore be sustained, and the statement in the former opinion, that reversible error was committed in excluding J. L. Wilkinson from the court room, will be withdrawn.

Upon the filing of the suggestion of error, counsel for appellant sought to avoid the force and effect thereof by attempting to perfect an appeal on behalf of the other parties defendant. In pursuance of this purpose, they secured the issuance of a summons by the clerk of this court for Mrs. M. C. Wilkinson, M. L. Wilkinson, and Louise Neely, trustee, to appear on the first Monday of July, 1927, and answer the appeal of J. L. Wilkinson in this cause. On July 4, 1927, M. L. Wilkinson and Louise Neely, trustee, filed an appeal and supersedeas bond in the sum of five hundred dollars, reciting that they were aggrieved by the decree entered in the said cause and de-. sired to join in the said appeal, and conditioned to pay an satisfy any decree or final judgment that might be entered in this cause. Mrs. M. C. Wilkinson did not join in the execution of this bond, for the reason, as stated in the brief of counsel, that she had died prior to the former hearing of this cause in this court.

In reply to the suggestion of error, counsel further stated that it was the intention and purpose of all the parties defendant to join in the appeal and their failure to do so was due to oversight and inadvertence; that the fact that they had not done so was not discovered until the filing of the suggestion of error; that since no summons was issued for the parties defendant, who did not join in the appeal, this court was without power to hear the cause and proceed to final judgment; and that the decree previously entered should be set aside and the cause remanded to the docket, with leave to appellant to summon the other parties defendant within a fixed time.

In support of this contention, they cite section 43, Code 1906 (section. 18, Hemingway’s 1927 Code); which provides :

“Any one or more of the parties to a judgment or decree may appeal therefrom; and if all the parties to a judgment or decree do not join in the appeal, the clerk of the court from which the appeal is taken shall issue a summons, when the appeal is taken, to such as do not join in the appeal to appear before the Supreme Court, at the return term of the appeal, and unite in the appeal; and if they fail to obey the summons, they shall not afterward have the right of appeal, and the judgment or decree of the court below shall remain, in full force against them.....The summons to join in appeal may be issued by the clerk of the Supreme Court at any time after the transcript shall be received by him, if applied to for it. . . .”

And they rely upon the case of Tardy v. Rosenstock, 118 Miss. 720, 80 So. 1, in which the effect of the failure to comply with this statute is discussed.( In that case, however, the fact that summons had not been issued for all the parties defendant was called to the attention of the court before the cause was submitted, and the court was requested to affirm the cause on the ground that this statute had not been complied with. In the later case of U. S. Fidelity & Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456, the court discussed the case of Tardy v. Rosenstock, supra, and said:

“It appears from this decision that it was improper for the appellant and appellee to proceed with the case on appeal here without issuing the summons to the defendant in appealing. The parties, however, did proceed without having the United States Fidelity & Guaranty Company summoned as required by this section, and evidently the court’s attention was not directed to, or attracted to, the absence of the defendant in the court here. ’ ’

The validity of the judgment from which the appeal was prosecuted was there upheld, but it was held that in the absence of a summons for the parties defendant not joining in the appeal, the supersedeas obtained by the first appellant would stay all proceedings on the judgment. Since all the parties in the case at bar permitted the cause to proceed to judgment without calling to the attention of the court the fact that certain parties defendant had not been summoned, we do not think the validity of the judgment or decree can now be called in question on the ground that such summons was not issued and served, and it is now too late to ash that the decree be set aside and the cause remanded to the docket to enable the appellant to have such summons issued and served.

The appellant, J. L. Wilkinson, having, as hereinbefore stated, and while the cause was pending on suggestion of error, secured the issuance of summons for the other parties defendant, and two of the said parties having filed an appeal and supersedeas bond in an attempt to perfect their appeal, the appellee thereupon filed a motion to dismiss the appeals, so attempted to be perfected, on the ground, among others, that:

“ (1) The appeal was not perfected within six months from June 30, 1926, the date of the decree in the lower court, and is therefore barred, as to each and all of said appellants.

“ (2) The appeal has never been perfected as to Mrs. M. C. Wilkinson, her heirs, or legal representatives.

“ (3) Each of the appellants has been guilty of inordinate delay and negligence in prosecuting said appeal.

“(4) The six months within which M. L. Wilkinson and Mrs. M. C. Wilkinson and Louise Neely could appeal from the decree of the lower court by executing bond expired prior to the death of Mrs. Wilkinson in February, 1927, and neither of said defendants executed such bond, or attempted to do so, or took any steps whatsoever to appeal from said decree.”

In reply to this motion, the appellants contend that the filing of an appeal and supersedeas bond by the appellant, J. L. Wilkinson, stopped the running of the statute limiting the right of appeal to the Supreme Court to six months after the rendition of the judgment or decree appealed from, and that the other parties defendant could be summoned, and their appeal perfected after the expiration of the six-month limitation. Chapter 153 of the Laws of 1926 (section 2650, Hemingway’s 1927 Code) provides:

“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. ’ ’

Within the time limit prescribed by this statute, any one or more of the parties to a judgment or decree may appeal therefrom without the consent of the others. Those who do not join in the appeal cannot be required to do so, and, although summoned to join, they can only do so by giving bond, with sureties, as if they had appealed in the first instance, as required by section 45, Code 1906 (section 20, Hemingway’s 1927 Code), and they cannot join after the cause has proceeded to judgment. The limitation on appeals prescribed by the said chapter 153, Laws of 1926 (section 2650, Hemingway’s 1927 Code), applies to those who are summoned to join in an appeal as well as to the original appellant, and after the expiration of six months from the rendition of the judgment or decree appealed from, parties so summoned cannot join in the appeal. The motion to dismiss the appeals of M. L. Wilkinson and Louise Neely, trustee, will therefore be sustained.