Summary
In DuBois v. Thomas, 173 Miss. 697, 161 So. 868, it was held that where costs on appeal, although adjudged against the appellee, were paid by the appellant after execution against appellee was returned unsatisfied, the appellant was held not entitled to dismissal of cause or to order directing the clerk to refuse payment of costs if tendered by appellee and to decline to issue mandate on the ground of the appellee's laches in delaying to pay costs; applicability of doctrine of laches being for the determination of the court below on return of cause.
Summary of this case from Jackson County v. MeautOpinion
No. 27833.
June 10, 1935.
1. APPEAL AND ERROR.
Statute authorizing dismissal of "pending" causes for want of prosecution held applicable only to cases not yet decided, and hence was inapplicable where judgment below had been reversed on appeal, although under court rule no mandate had been issued because of appellee's failure to pay costs (Code 1930, sec. 667; Supreme Court rule 29).
2. APPEAL AND ERROR.
Where costs on appeal, though adjudged against appellee, were paid by appellant after execution against appellee was returned unsatisfied, appellant held not entitled to dismissal of cause or to order directing clerk to refuse payment of costs if tendered by appellee and to decline to issue mandate on ground of appellee's laches in delaying to pay costs; applicability of doctrine of laches being for determination of court below on return of cause (Supreme Court rule 29).
Action between Mrs. Willie G. DuBois and R. Thomas.
From the judgment, the first-named party appealed, and the judgment below having been reversed, costs on appeal were adjudged against appellee, who declined to pay. Motions by appellant for dismissal of the cause or for an order directing the clerk to decline to issue a mandate. Motions denied.
R.H. and J.H. Thompson, of Jackson, for appellant.
This cause should be by this court finally dismissed because it is a stale case and because appellee is chargeable with laches.
Woodruff case, 150 So. 760; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Walther v. Null, 134 S.W. 993, 233 Mo. 104; Adams v. Gossom, 129 S.W. 16, 21, 228 Mo. 556; Newberry v. Wilkinson, 199 Fed. 686, 118 C.C.A. 111; Sheffield-King Mill Co. v. Shellfield Mill Elevator Co., 117 N.W. 447, 105 Minn. 315, 127 Am. St. Rep. 574; Rutter v. Carothers, 122 S.W. 1056, 223 Mo. 631; Leathers v. Stewart, 79 A. 16, 108 Me. 96, Ann. Cas. 1913B, 336; Woodruff v. Williams, 85 P. 90, 35 Col. 28, 5 L.R.A. (N.S.) 986; Hagerman v. Bates, 38 P. 1104, 5 Col. App. 402; Venner v. Chicago City Ry. Co., 86 N.E. 266, 273, 236 Ill. 349; Northern Pac. R. Co. v. Boyd, 177 Fed. 804, 101 C.C.A. 18; Galliher v. Caldwell, 12 Sup. Ct. 873, 145 U.S. 368, 31 L.Ed. 738; Wilson v. Wilson, 69 P. 923, 40 Or. 459; Chancellor v. Banks, 123 S.W. 650, 92 A. 497; Osceola Land Co. v. Henderson, 100 S.W. 986, 81 Ark. 432; Ruckman v. Cox, 59 S.E. 760, 63 W. Va. 74; Dempster v. Rosehill Cemetery Co., 68 N.E. 1070, 206 Ill. 261; Norwood v. Andrews, 71 Miss. 641; Griffith's Mississippi Chancery Practice, sec. 538,
We are confident that the court, upon a reading of the entire record, will conclude that no injustice will be worked upon appellee by the sustaining of this motion and the ending of his suit.
The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.
Section 667, Code of 1930; Miss. Central R.R. Co. v. Brookhaven Lbr. Mfg. Co., 147 So. 814.
It will be observed that the statute makes it the duty of the clerk of any court to move for the dismissal of any cause pending in which no step has been taken for the two terms preceding. Clearly the statute in as much applicable to the Clerk of the Supreme Court, and to the Supreme Court itself, as it is to the Chancery Clerks and the Chancery Courts.
Staleness of claim necessarily implies great lapse of time, while to constitute laches, the delay need not necessarily be long continued.
21 C.J., sec. 211, pages 210, 236, and sec. 229, page 234; 16 Cyc. 169; Pooler v. Hyne, 213 Fed. Rep. 154; Bower v. Stein, 177 Fed. Rep. 673; Leggett v. Standard Oil Co., 149 U.S. 288; Hayward v. National Bank, 96 U.S. 611, 618. J.A. Lauderdale, Assistant Attorney-General, for Supreme Court Clerk.
The motion should be overruled for the following reasons: 1. The cause has been fully determined insofar as this court is concerned and the cost has been adjudged against the appellee; 2. The appellant simultaneously with filing the above-mentioned motion filed a motion in her own name seeking the same relief. If the motion by appellant is sustained, then the motion against the clerk will be wholly unnecessary. If the motion by appellant is overruled, then a similar motion by the clerk would be overruled for the same reasons; 3. Section 667, Code of 1930, has no application to the facts in this case.
The judgment of the court below was reversed at the March, 1929, term of this court, and costs on appeal were adjudged against the appellee. 154 Miss. 286, 122 So. 495. He declined to pay the same, and execution against him therefor was returned nulla bona. The costs were then paid by the appellant. No mandate returning the case to the court below has been issued under rule of this court, No. 29, which is as follows:
"When costs are awarded in this Court against the appellee, and there shall have been a return of nulla bona to an execution against him, and the costs shall be paid by appellant, no mandate shall issue upon the application of the appellee, until he shall pay into the Court, for the use of appellant, the costs paid by him."
The appellant has filed three motions herein. One is for an order to the clerk of this court directing him to file a motion for the dismissal of the cause under sec. 667, Code of 1930; one for the dismissal thereof without the intervention of the clerk; and one for an order directing the clerk to refuse payment of the costs if tendered him by the appellee, and to decline to issue a mandate returning the cause to the court below. The grounds of these motions are that the appellee is guilty of laches in delaying to pay the costs and procure a mandate, and that the appellant has been prejudiced thereby, setting forth facts in support thereof.
Section 667, Code of 1930, applies only to pending cases, i.e., cases not yet decided, and this case has been decided, and final judgment disposing of the appeal has been rendered. No statute or rule of court grants the relief here sought, and whether the doctrine of laches applies to the appellee's delay in prosecuting the case will be for the determination of the court below on the return of the cause thereto. Cf. Tucker v. Wilson, 68 Miss. 693, 9 So. 898.
Motions overruled.