Cresswell v. Cresswell

140 So. 521, 164 Miss. 871, 1932 Miss. LEXIS 207

• Court: Mississippi Supreme Court
• Decided: March 28, 1932
• Docket: No. 30041.
• Status: Published

Opinions

At the December, 1929, term of the chancery court of Yazoo county, this case was set for hearing in vacation by a formal order entered to that effect. On the day so set, to-wit, on January 9, 1930, the chancellor heard the case, and thereupon entered a further order taking it under advisement. On July 30, 1930, the chancellor sent to the solicitors a written opinion, and directed that a decree in accordance therewith be prepared and forwarded to him. On August 2, 1930, the solicitors for appellee furnished to the solicitors of the opposing side a copy of the proposed decree, and the original was on that day forwarded to the chancellor. The chancellor signed the decree on August 19, 1930, but did not deliver it to the clerk until August 27, 1930. Appeal bond for an appeal from the decree was filed by appellant on February 20, 1931, and appellee has filed herein a plea in bar of the appeal, on the ground, as appellee contends, that the appeal was not taken "within six months next after the rendition of the judgment or decree complained of." Section 2323, Code 1930. The question for decision is whether the decree was rendered on August 19th, the date of the signing of the decree by the chancellor, or whether on August 27th, the date when the written decree was by him delivered to the clerk for entry.

In courts of law the date of the rendition of the judgment is the date "when the court signifies its assent to the sentence of the law as the result of proceedings in the case." Clark v. Duke,59 Miss. 575, 579. In the law courts, the judgment is pronounced by the court orally in the presence of the clerk, and the clerk is thereupon authorized forthwith to enter the judgment upon the minutes. No signed order by the judge to the clerk is necessary, except as otherwise provided in special instances; and hence in ordinary cases the date of the rendition of a judgment at law is the pronouncement thereof by the court at the conclusion of the trial. Simpson v. Boykin, 118 Miss. 701, 718, 79 So. 852.

But in the chancery court, because of the elaborate and flexible character of the decrees rendered therein, the contents of the decrees and decretal orders are not, and cannot be, intrusted to the clerk, but must first be drawn up in writing by the solicitors or by the chancellor and signed by the chancellor, Howard v. Jayne, 124 Miss. 65, 86 So. 752; and, until thus drawn up, signed by the chancellor, and by him in this form delivered to the clerk, there is no authority to the clerk to enter the decree on the minutes. We think the logic of the law is to the effect that a judgment or decree is rendered when, and only when, the clerk is authorized to enter it on the minutes. We therefore concur in the statement found in 2 R.C.L., p. 107, as follows: "Where the statute provides that appeals shall be taken within a certain time from the rendition of the judgment, order or decree, the date of the judgment, order or decree is not necessarily the date of its rendition, and where an order, after signature, remains in the possession of the judge unannounced and unpublished until he files it with the clerk, the time of filing will be considered the time of rendition and not the time of its date and signature by the judge." See, also, Peterson v. Nash, 50 C.C.A. 260, 112 Fed. 311, 55 L.R.A. 344. Under our jurisprudence in chancery the only manner in which the chancery court or chancellor can, with valid and consummated effect, announce, publish, or render a decree is to sign it and deliver the same to the clerk. It is of some interest to note that this holding in respect to final decrees harmonizes with the statute, section 14, Code 1930, on the subject of appeals from interlocutory decrees. Our conclusion is that the appeal in this case was taken in time, and that the plea in bar is insufficient in law.

So ordered.