
    Adolphus A. Beasley v. Sophia A. Cottrell.
    [47 South. 662.]
    Motion to Dismiss Appeal. Appeals. Limitation. Code 1906, § 3112.
    An appeal to the supreme court is barred and will be dismissed on motion, if nothing save the execution of a bond be done in the-way of perfecting it before the expiration of the two years allowed therefor by the statute of limitations. Code 1906, § 3112..
    Erom the chancery co-urt of Clay county.
    Hon. John Quitman Robbins, Chancellor.
    Mrs. Cottrell, appellee, was complainant in the court below Beasley, appellant, was defendant there. Erom a final decree in complainant’s favor defendant appealed to the supreme court.-
    
      The final decree in favor of complainant, Mrs. Cottrell, was rendered May 16, 1906. Bond for appeal was filed in the uourt below May 16, 1908, but a citation for appellee was not issued until November 14, 1908, nor was the transcript of the record received by the clerk of the supreme court until November 19, 1908.
    Appellee moved a dismissal of the appeal.
    
      J ohn Q. Mill saps, for the motion.
    The motion to dismiss must be sustained. Code. 1906, § 3112, requires that the appeal from the judgment or decree complained of must' be brought within two years’ time. The appeal bond was filed one day too late, as it should have been filed on May 15 instead of May 16, 1908, to come within the two years’ period. But aside from this, the bond alone was filed May 16, 1908, no citation for the appellee being even issued until November 14, 1908. Nor was tbe transcript of tbe record of tbe court below sent to this court until some days later.
    This court has held that tbe mere filing of tbe appeal bond witbin tbe two years is not sufficient. Chambliss v. Wood, 84 Miss. 209, 36 South. 246, hence the motion to dismiss should be sustained and tbe appeal dismissed.
    
      Leftwich & Tvhb, contra.
    
    Tbe motion of appellee to dimiss tbe appeal is dependent upon the' construction of Code 1906, § 3112, providing that “appeals to tbe supreme- court shall be taken witbin two years next after tbe rendition of tbe judgment or decree complained of.” The decree, from which appeal is sought, was rendered May 16, 1906, hence tbe appellant bad all of May 16, 1908, wherein to file appeal bond; because the two years’ period did not begin to run- until May 17, 1906. Hence tbe appeal was taken in time. See Code 1906, § 1606, touching tbe computation of time.
    Certificate ef tbe clerk of tbe court below is attached to oúr brief showing that citation was not issued and served on the day the appeal bond was filed, for the reason that he had recently become an incumbent of the position, this being the first appellate matter coming before him in his term of office as clerk of the chancery court, and that he did not know the requirements relative to procedure in appeal from the chancery court. It would accordingly be a harsh thing for this court to enforce the rule laid down'in Ohambliss v. W.ood, 84 Miss. 209, 36 South. 246, when appellant was not to blame for the clerk’s failure to issue the citation within the proper limit of time.
   Fletcher, J".,

delivered the opinion of the court.

While the appeal bond in this case was given within the two years mentioned in the statute, yet the citation was not served upon the appeal, nor was the transcript filed in this court within two years next after the rendition of the judgment. Under the authority of Chambliss v. Wood, 84 Miss. 209, 36 South. 246, we are compelled to sustain this motion, and dismiss this appeal. So ordered.  