Childs v. Rowell , 58 Miss. 512 ( 1880 )

Chalmers, C. J.,

delivered the opinion of the court.

The appeal was prayed before the circuit clerk of Tippah County on the eleventh day of November, 1880. No transcript of the record having- been applied for, a certificate of that fact is presented to us by thd appellee, and we are asked to docket and dismiss the case in accordance with the provisions of sect. 1416 of the Code of 1880.

Under the act of 1874 (Sess. Acts, p. 27), the appellant, who sued out his appeal after a term of this court had commenced, or within less than ten days of its commencement, had the option to make his writ returnable to the day during the current term fixed by law or by order-of court for taking-up the docket of his district, or to make it returnable to the first day of the term next ensuing thereafter.

This is changed by the provisions of sect. 1402 of the Code of 1880, by which two return-days of equal dignity arc established for this court, to-wit: the first day of the term aud the day fixed for taking up the docket of..the district from which the appeal comes. Inasmuch, therefore, as the appellant cannot pass a return-day, but must make his writ returnable to the next ensuing- one that is practicable, it follows that if the appeal is prayed after' a term of this court has commenced, or within ten days before it will commence, it must be made returnable to the day for taking up the docket of the district, unless less than ten days will intervene before that day. The appeal, therefore, in this case was returnable to the first Monday in January, 1881, that being the day fixed by law for taking up the docket of the Third District. No-transcript of the record having been presented here at this time, and we being now advised that none was applied for below, the motion to docket and dismiss is sustained.

Where an appeal in a chancery proceeding is prayed and granted in open court, it is returnable to the first day of our term, even though less than ten days will elapse before the commencement of that term, because in such case no citation to the opposite party is necessary. New York Hospital v. Knox, 57 Miss. 600. But, of course, if our term has already commenced, then, even in this class of cases, the appeal must be returnable to the day fixed for taking up the docket of the-district.