E. M. Apperson & Co. v. Fant , 42 Miss. 252 ( 1868 )

Shackelford, C. J.,

delivered tbe opinion of tbe court.

Tbe record in the above-styled cause was received by tbe clerk of tbis court on tbe 16tk day of December, 1868, and filed to tbe April Term, 1869.

Plaintiffs in error, being dissatisfied with tbis action of tbe clerk, entered tbe following motion on tbe 5th day of January, 1869: •

“ Plaintiffs in error move tbe court to have tbis case docketed for trial at tbis term.

“ Tbis was a suit brought by plaintiffs in error, in Marshall county, against defendant in error, on a debt due before 1st June, 1865.

“ Tbe cause was tried after tbe third Monday of October. There was jury and verdict for defendant below.

“Writ of error was taken to third Monday of December, 1868, and transcript sent to tbis court before that time.

“ Tbe clerk lias docketed tbe case to April Term, 1869.

“Walter & Scruggs,

“ Attorneys for Motion.”

The only question involved in this motion is, whether tbe clerk erred in docketing the cause to tbe April Term, 1869, of tbis court.

In support of tbe proposition contended for by counsel, they insist that tbe first section of tbe Act of tbe 30th October, 1866 (Pamphlet Acts, p. 26), lias reference only to delay cases, and not to litigated cases ; and that tbe case at bar is purely a litigated case, and that they are entitled, for that reason, to have a trial of the cause during tbe present term or session of the court, and therefore tbe cause is improperly docketed to the April Term, 1869.

If tbe position of counsel is correct, tbe clerk should have docketed'tbe cause to tbe third Monday of December, 1868, that day having been made a return day by tbe act of the legislatore passed 26tb January, 1860 (Pamphlet Acts, p. 179), the writ of error in this case having been sued out after the regular return day of the court, the third Monday of October, 1868.

We are unable to observe anything in the first section of this act which warrants the assumption of counsel, that delay cases are only intended to be embraced in its provisions.

. It seems clear to us that the act was intended to apply to all j ndgments “ founded upon causes of action made or originated prior to the 1st of June, 1865,” in which there -are errors in the proceedings of the courts below, as well as when there are no errors in such proceedings. In one sense of the act it is intended for a stay law, and in the other, it was intended to give the judgment debtors an opportunity to have errors corrected or judgments revised, on such terms as were in the reach of every one — the giving of a bond for the costs only, the writ of error, etc., to operate as a supersedeas.

This act was amended on the 8th day of February, A.D. 1867 (p. 230, Sheet Acts, 1866-7), by which the provisions of § 1 of Act of 30th October, 1866, aforesaid, were made to extend to all judgments rendered before that time and to be thereafter rendered.

The second section of the Act of 30th of October, 1866, in cpestion, provides that the first day of each term of this court shall be the “sole return days of said court ” for the cases provided for in the first section of the act.

The first days of each term of the court are the third Mondays of April and October of each year. Revised Code, p. 561.

Therefore the case at bar having been tried and disposed of' below, at the September Term of the Marshall County Circuit Court, AJD. 1868, under the provisions of the Supplemental Act of 8th February, 1867, it has to take the sa:ne course as if the judgment had been rendered before, the 30th of October, 1866.

The writ of error having been sued out here after the third Monday of October, 1868, it has to be made returnable to the April Term, 1869, of this court, as it is admitted that the cause of action, was made or incurred before the 1st day of June, 1865.

All writs of error, or appeals and citations, sued out or to be sued out after the regular return days of this court, are returnable to the next succeeding day, when the docket of the proper districts will be taken up and called by the court, where the' judgments or decrees are founded upon or grew out of any cause of action made or incurred since the 1st June, 1865.

This the clerk of the court will ascertain from the transcripts of each case when necessary.

The record in this case was' properly filed by the clerk to the April Term, 1869, of the court.

The motion will therefore be overruled.