Finney v. Speed , 71 Miss. 32 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

A plea must be considered with reference to that which it professes to answer, in order to determine as to its sufficiency. This plea is in bar of the appeal from a decree in a cause in which the appellant was shown by the bill and subsequent proceedings to be non compos mentis. In view of this, tl¡e plea is not good, because it does not aver the removal since of tlie disability existing when the decree was given, and the lapse of the requisite period to bar appeal after the removal of such disability and -before the appeal. If an infant were to appeal from a decree, and the record did not show, in conjunction with lapse of time, of which the court would take notice, that the disability had been removed long enough before the appeal to bar it, it would devolve on the appellee, pleading in bar of the appeal, to aver the removal of the disability at such time as to show the appeal to be barred. And if a married woman appealed, and coverture was a disability, it would be necessary for the appellee pleading the bar of the appeal by time, where the record showed coverture to exist when the judgment was given and it did not appear to have ceased, to aver removal of the disability at such time as to bar the appeal.

True, who claims to be within the exception of a statute must bring himself within it, but the cases put do not contravene this rule. The state of case existing as shown by the record at the time of judgment or decree appealed from, is presumed to continue and still exist, unless the record and what is judicially taken notice of in connection with it show the contrary.

We cannot accept the view of counsel for the appellees, to the effect that a non compos mentis cannot appeal until the removal of his disability, and that an appeal by his guardian or next friend must be taken within the time prescribed to bar appeals by those not under disability. To hold that no appeal can be had until removal of disability, is to deny an appeal where there is. never removal of the disability; and to hold that an appeal by guardian or next friend is not subject to the saving in favor of persons of unsound mind, is to assume that the appeal is that of the guardian or next friend, whereas it is the appeal of the person of unsound mind, and the guardian or next friend is not a party in interest, but appears for the protection of the interests of the person whose interests are involved, because he is assumed to be incapable of suitably representing himself.

The adjudications of this court as to the rights of infants to show cause against a decree, and to appeal from it, throw light on the question here involved, and suggest its true solution. Sledge v. Boone, 57 Miss., 222; Enochs v. Harrelson, 57 Ib., 465; McLemore v. Chicago R. R. Co., 58 Ib., 514; Vaughn v. Hudson, 59 Ib., 421.

The suggestion that McLemore v. Chicago Railroad Co., 58 Miss., 514, is opposed to the view now held, is unfounded. The several cases cited are in complete accord with each other, and conduct to the conclusion now announced.

The demurrer to the plea is sustained, and leave given the appellee to answer over.