Town of Tutwiler v. Gibson

78 So. 926, 117 Miss. 879

• Court: Mississippi Supreme Court
• Decided: March 15, 1918
• Status: Published

Opinions

Smith, C. J.,

delivered the opinion of the court.

This cause comes on to be heard on motion by appel-lee to dismiss the appeal on the ground that it was taken after the expiration of the time allowed by the statute therefor, which motion is in effect, and will be treated as, a plea in bar of the appeal.

The judgment appealed from was rendered on the 11th day of March, 1915, and the record was filed in this court on the 27th day of February, 1918, two years, eleven months, and fifteen days thereafter. The record contains neither a petition nor a bond for appeal, so that, under section 47, Code of 1906 (Hemingway’s Code, section 23), the appeal must he considered as having been taken at the time the record was filed in this court.

Section 3112, Code of 1906 (Hemingway’s Code, section 2476), provides that appeals to the supreme court shall be taken within two years next after the rendition of the judgment or decree complained of, which time was reduced by the Laws of 1916, chapter 222, to one year. Section 24, Hemingway’s Code. Since both of these periods of time had expired when the apppal was taken, we are not called upon here to decide whether the original statute or the amendment thereto governs. Section 104 of our state Constitution, and section 3096, Code of 1906 (Hemingway’s Code, seoeion 2460), provide that “statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof. ’ ’ These sections, however, have no bearing upon the question here presented for the reason that the statute limiting the time within which appeal to the supreme court must he taken is not a statute of limitation in the ordinary sense. The right of appeal exists only by virtue of the statutes which confer it, can be exercised only in accordance therewith and within the time allowed thereby. Section 33, Code of' 1906 (Hemingway’s Code, section 8), by which the right of appeal is granted, and section 3112, Code of 1906 (Hemingway’s Code, section 2476), are • but• parts of the legislative scheme by which the right to appeal is granted and regulated. Consequently they must be construed together and given the same interpretation as if they were in fact, as they are in effect parts of the same statute; and, when this is done, it will appear that the right granted by the first of these sections is not simply the right to appeal but the right to appeal within a specified time.

It is, for obvious reasons, to the interest of the public that the time within which appeals in civil cases. ■can be taken should be limited, which reasons apply with equal force to a municipality that they do to a natural person, which fact, we presume, ■ influenced the legislature in making no distinction between them.

Motion sustained.