Cleveland State Bank v. Cotton Exchange Bank , 118 Miss. 768 ( 1918 )

Ethridge, J.,

delivered the opinion of the court.

Appellee moves to dismiss the appeal in this case because no bond was filed by appellant. The Cleveland State Bank was a county depository, and as such had certain funds in its charge. The superintendent of education issued certain warrants on account of school funds which were in the said depository, and the revenue agent filed a suit enjoining the Cleveland State Bank from paying said warrants on the ground that they were issued without authority of law. No one was made a party defendant to the suit except the Cleveland State Bank.

The Cotton Exchange Bank acquired certain of these warrants and brought a mandamus in the circuit court to compel payment of the warrant. There was judgment in the mandamus suit against the Cleveland State Bank, and the bank appealed here, but failed to file an appeal bond, on the theory that it, being a depository, was entitled to appeal without bond, under section 94, Code of 1906 (section 76, Hemingway’s Code). Motion to dismiss the appeal was presented, on the theory that the depository or bank was not entitled to appeal without bond.

We are of the opinion that the .bank was not entitled to appeal without bond, hut that under section 4913, Code of 1906 (section 3189, Hemingway’s Code), the court has power to permit the appellant to supply the necessary bond, which he may do within ten days, and unless said bond is filed within ten days, conditioned according to law, the suit will stand dismissed. See Hudson v. Gray, 58 Miss. 589.

Overruled, with leave to file bond in ten days.

Overruled.