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decree overruling the demurrer should be af- the persons named above and that information firmed.

Affirmed.

as to the injury complained of was peculiarly within the knowledge of the plaintiff, in that the matters complained of were known to said Henry Knight & Co. at the time of delivery,

ANDERSON, C. J., and McCLELLAN and and were unknown to defendant for more than SAYRE, JJ., concur.

(201 Ala. 581)

NASHVILLE, C. & ST. L. RY. CO. v.
CAMPER. (8 Div. 106.)

(Supreme Court of Alabama. May 9, 1918.)
1. CONTRACTS 176(1) INTERSTATE SHIP-
MENT-CONSTRUCTION-PROVINCE OF COURT.
The construction of a contract for a through
interstate shipment of live stock is a matter for
the court, and not for the jury.

2. CARRIERS 46-INTERSTATE SHIPMENTWHAT LAW GOVERNS.

The rights, liabilities, and remedies of parties under a contract for a through interstate shipment of live stock are governed alone by pertinent federal laws.

3. CARRIERS 46-INTERSTATE SHIPMENTWHAT LAW GOVERNS.

If otherwise entitled to recover, the provisions of the Carmack Amendment (Act Cong. Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, as amended by Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) should be accorded appropriate effect in determining the liability of the carrier to the shipper in case of interstate shipments.

4. CARRIERS 159(1) — STIPULATION AS TO NOTICE OF CLAIM-VALIDITY.

Stipulations in interstate bills of lading requiring notice of claim of damages and extinction of the right to recover therefor if the notice stipulated is not given are valid and effective, and if the notice of claim required by the bill of lading is not given the carrier is not liable in any form of action.

5. CARRIERS 148-INTERSTATE SHIPMENTS -WHAT LAW GOVERNS.

Code 1907, § 4297, making void stipulations forfeiting rights for failure to give notice, is not applicable to interstate shipments.

24 hours thereafter, and until after said cattle were mingled with other cattle or moved away, and defendant avers that the delivery, of the cattle was made by Louisville & Nashville Railroad Company at Louisville, Ky., and that defendant was not present at the time and place of delivery by agent or otherwise, and that the injury and loss complained of occurred on the line of the Louisville & Nashville Railroad Company.

Street & Bradford, of Guntersville, for appellant. John A. Lusk & Son, of Guntersville, for appellee.

MCCLELLAN, J. The complaint counts on the contract of carriage by a common carrier, and is not in tort, for the breach of a duty arising out of the contract of affreightment. The appellee (plaintiff) delivered to the appellant (defendant) 35 head of cattle to be transported from Hobbs Island, Ala., to Louisville, Ky. While the bill of lading issued to the shipper contained the station Nashville (presumably Tennessee, though the state is not given) at one place in specifying the destination of the shipment, yet it is plain from a view of the whole instrument that the writing in of the station Nashville was an error; that the bill was a through bill of lading, for interstate transportation from Hobbs Island, Ala., to Louisville, Ky.

[1-5] The construction of this contract of affreightment was a matter for the court's decision, not the jury. Being an interstate

shipment, the rights, liabilities, and remedies of the parties under the contract are governed alone by pertinent federal laws. Cin.,

Appeal from Circuit Court, Marshall Coun- etc., Ry. Co. v. Rankin, 241 U. S. 319, 36 ty; W. W. Haralson, Judge.

Action by F. O. Camper against the Nashville, Chattanooga & St. Louis Railway Company for damages for failure to deliver stock. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

The following is plea 3:

Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265. If otherwise entitled to recover, the provisions of the Carmack Amendment should be accorded appropriate effect in determining the liability of the carrier to the shipper. Northern Pac. Ry. Co. v. Wall, 241 U. S. 87, 91, 92, 36 Sup. Ct. 493, 60 L. Ed. 905; G. F. & A. Ry. v. Blish, 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948. Stipulations That the contract between plaintiff and de- in interstate bills of lading requiring notice fendant contained a clause in substance that of claim of damage and extinction of the as a condition precedent to the recovery of any right to recover therefor if the notice stipudamages for any loss or injury to live stock lated is not given are valid and effective, and covered by the contract for the claim therefor if the notice of claim required by the bill of to some general officer, or to nearest station agent of the delivering line, before such stock lading is not given the carrier is not liable is removed from the point of shipment or from therefor in any form of action. C. & O. Ry. the place of destination and before such stock Co. v. McLaughlin, 242 U. S. 142, 37 Sup. Ct. is mingled with other stock, such written notification to be served within one day after de- 40, 61 L. Ed. 207; St. L., etc., Ry. Co. v. livery of the stock at destination to the end Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 that such claim may be fully and fairly inves- L. Ed. 917. The provisions of the Alabama tigated, and that a failure to comply with this statute (Code, § 4297) are not applicable to clause shall be a bar to the recovery of any and all such claims and to any suit or action interstate shipments. In N. C. & St. L. Ry. brought thereon; and defendant avers that said v. Hinds, 178 Ala. 657, 59 South. 669, the written notification was not given to either of state statute (section 4297) was erroneously

applied to an interstate shipment. Cin., etc., Ry. Co. v. Rankin, supra, where it was said: "The shipment being interstate, rights and liabilities of the parties depend upon acts of Congress, the bill of lading, and common-law rules as accepted and applied in federal tribu

nals."

In Banc. Appeal from Circuit Court, Tallahatchie County; E. D. Dinkins, Judge.

Action by Mrs. E. W. Gibson against the Town of Tutwiler. From the judgment rendered, the Town appeals, and plaintiff moves to dismiss the appeal. Motion sustained. The third plea as amended, which the re- Hays, Stingily & Whitten, of Sumner, and port of the appeal will reproduce, sought to Wells, May & Sanders, of Jackson, for appelavail of such a stipulation for notice of dam-lant. Ward & Ward, of Sumner, and R. H. age and claim in bar of the action. The & J. H. Thompson, of Jackson, for appellee.

court erred in sustaining a demurrer thereto.

The judgment is reversed and the cause is

remanded.

SMITH, C. J. [1] This cause comes on to

Reversed and remanded. All the Justices be heard on motion by appellee to dismiss the

concur.

(201 Ala. 582)

BANK OF HENRY v. NORTON.

(4 Div. 779.) (Supreme Court of Alabama. April 18, 1918.) Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.

Action by the Bank of Henry against C. J. Norton. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6. Affirmed.

Lee & Tompkins, of Dothan, for appellant. W. O. Long, of Abbeville, for appellee.

MAYFIELD, J. This was an action of trover for the conversion of three hogs. The trial, which was by the court without a jury, resulted in a judgment for the defendant, and plaintiff appeals.

Plaintiff relied upon a mortgage title acquired from one George Carter, and defendant relied upon a sale by one Emily Carter, the wife of George Carter. There was abundant evidence, if true, to support the title of either. There being no jury, the court, of course, had to hear all that was offered as evidence, before he could pass upon its relevancy or competency.

We find no prejudicial error in the rulings on the evidence, and are not prepared to say that the trial court erred in its findings or in the judgment rendered. There are involved no questions of law which merit discussion.

Affirmed.

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, 2 years, 11 months, and 15 days thereafter. The record contains neither a petition nor a bond for appeal, so that, under section 47, Code of 1906 (Hemingway's Code, § 23), the appeal must be considered as having been taken at the time the record was filed in this court.

[2] Section 3112, Code of 1906 (Hemingway's Code, § 2476), provides that appeals to the Supreme Court shall be taken within 2 years next after the rendition of the judgment or decree complained of, which time was reduced by the Laws of 1916, c. 222, to one year. Section 24, Hemingway's Code. Since both of these periods of time had expired when the appeal 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, § 2460), provide that "statutes of limitation in civil cases shall not run against the state,

ANDERSON, C. J., and SOMERVILLE and or any subdivision or municipal corporation GARDNER, JJ., concur.

(117 Miss. 879)

TOWN OF TUTWILER v. GIBSON. (No. 20284.)

thereof." These sections, however, have no bearing upon the question here presented for the reason that the statute limiting the time within which appeals to the Supreme Court must be 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, and can be exercised only in ac A motion to dismiss an appeal because tak-cordance therewith and within the time alen after the expiration of the time allowed by lowed thereby. Section 33, Code of 1906 statute will be treated as a plea in bar of the appeal. 2. APPEAL AND ERROR 338(1) — TIME FOR APPEAL-MUNICIPAL CORPORATIONS.

(Supreme Court of Mississippi. April 22, 1918.) 1. APPEAL AND ERROR 794-MOTIONS-EFFECT.

Const. 1890, § 104, and Code 1906, § 3096 (Hemingway's Code, § 2460), providing that the statutes of limitation in civil cases shall not run against municipal corporations, have no bearing on appeals, since the right of appeal exists only by virtue of statute, and section 3112 (section 2476) fixing the time for taking appeals must be construed with section 33 (sec tion 8) authorizing appeals.

Ethridge, J., dissenting.

(Hemingway's Code, § S), by which the right of appeal is granted, and section 3112, Code of 1906 (Hemingway's Code, § 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 page 402, art. 25, of the chapter on Limita. 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.

In

tions of Actions that the limitations herein prescribed for the commencement of actions shall apply to the same actions, when brought in the name of the state or any county or in the name of any officer, or otherwise, for the benefit of the state or any county, in the same manner as actions brought by citizens. this same chapter on page 401, art. 17, appeals were limited by statute to 3 years next after the rendition of the judgment or decree complained of. The statute making the limitaETHRIDGE, J. (dissenting). I dissent tion run against the state, counties, and from the view of the majority on this motion municipalities remained in force from 1857 to to dismiss. Section 94 of the Code of 1906 1877. and the result was disastrous to the (Hemingway's Code, § 76), gives the state, interests of the state, and during this period counties, and municipalities and publie offi- of time millions of dollars worth of propcers representing them, the right of appeal, erty belonging to the state were acquired by and in this section there is no limitation individuals without any claim of right other whatever upon the right so far as time is than the fact that they went upon the propconcerned. This section is in the chapter on erty and used it and claimed it. This evil was Appeals, and if it was the only section bear- so glaring that the Legislature in 1877 changing upon the question there could be no doubted the law upon that subject. (Laws 1877, c. that there would be no time limit upon the taking of appeals during the life of the judgment. The only limitation upon the right to appeal is contained in section 3112 of the Code of 1906 (section 2476, Hemingway's Code), in the chapter on Limitation of Ac-ligence of the officers and servants of the

49). When the Constitutional Convention met in 1890, having full knowledge of the evils of permitting the statute of limitations to run against the state, counties, and municipalities and the losses that would come though neg

state in looking after the public business,

tions, which reads as follows: "Appeals to the Supreme Court shall be tak-enacted section 104 of the Constitution which en within two years next after the rendition of the judgment or decree complained of, and not after, saving to persons under disability of infancy or unsoundness of mind the like period after their disability shall have been re

moved."

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"Statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof; but all such statutes shall run in favor of the state, the counties, and the municipal corporations therein; and the statutes of limitation shall begin to run in favor of the state, the counties, and municipal corporations at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon."

This section was section 3112, Code of 1906, section 2752, Code of 1892, and section 2682, Code of 1880, and in that Code, which was in force when the Constitution was adopted, this section on Limitations of Appeals was in the chapter on Limitation of Actions, and not in the chapter on Appeals. And the same is true of all of the Codes of the state, beginning with Hutchinson's Code and coming down to the present statute upon that subject. The Legislature classified this statute as a statute of limitation, and placed it in the chapter upon that subject, and throughout the legislative history it has been in the chapter on Limitation, and not in the chapter on Appeals or the chapter on Writs of Error in the same Code when the writ of error was the method of bringing causes for review on appeal. In the Code of 1857 it was expressly provided at

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sought to establish beyond legislative control a policy that the limitation of actions should not run against the state, any subdivision thereof, or any municipal corporation thereof. Certainly the statute in the present case is a statute limiting a right in a "civil cause." Section 104 reads as follows:

"Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof.'

The Constitution, while establishing the policy that the statute of limitations should not run against the state, was silent as to whether it should run in favor of the state, leaving that subject to the Legislature, and the Legislature, which has the right to establish and pass upon questions of public policy, enacted section 3096 of the Code of 1906 (section 2460 of Hemingway's Code), providing that the statute should run in favor of the state, counties, and municipalities, but should not run against them. So, it appears clear to me that, if there was no authority upon the question at all in this state, considering all these statutes together, and considering the way in which they have been classified by the Legislature itself, would make it perfectly clear that the statute of limitation limiting appeals should not run against the state or any subdivision thereof, including municipal corporations. However, our court has had occasion to consider this question on several occasions and have recognized the statute limiting appeals as being a statute of limitation and not a condition of appeal. In the case of Hendricks v. Pugh, 57 Miss. 157, in the first syllabus the court held that the defense of the statute of limitations in bar of

an appeal is not available unless pleaded in, the Supreme Court. On page 162 in the GULF, MOBILE & N. R. CO. v. WILSON. course of the opinion of the court Judge Chalmers, speaking for the court, said:

"It is argued by counsel for the appellee that the appeal could not bring these decrees into review, because, more than 3 years having elapsed since their rendition, appeal therefrom is barred by the statute of limitations. But no plea of the statute having been filed in this court, this objection cannot be noticed."

If the statute limiting the appeal was a

(No. 20261.)

(Supreme Court of Mississippi. June 10, 1918.)

Appeal from Circuit Court, Newton County; J. D. Carr, Judge.

Action between the Gulf, Mobile & Northern Railroad Company and A. B. Wilson. Judg ment for the latter, and the former appeals.

Affirmed.

J. T. Brown, of Laurel, and J. N. Flowers, of Newton, and A. J. McLaurin, Jr., of Brandon, Jackson, for appellant. Jesse D. Jones, of for appellee.

PER CURIAM.

Affirmed.

YAZOO CITY V. COLLINS. (No. 20278.) (Supreme Court of Mississippi. June 10, 1918.)

Appeal from Circuit Court, Yazoo County; W. H. Potter, Judge.

Action between Yazoo City and Mrs. Appie Collins. Judgment for the latter, and the former appeals. Affirmed.

Holmes & Holmes, of Yazoo City, for appel. lant. W. A. Henry, of Yazoo City, for appellee. PER CURIAM. Affirmed.

M. C. KISER CO. v. LIPSCOMB.
(No. 20272.)

(Supreme Court of Mississippi. June 10,
1918.)

Appeal from Chancery Court, Lauderdale County; G. C. Tann, Chancellor.

Suit between the M. C. Kiser Company and John Lipscomb, trustee. Decree for the latter, and the former appeals. Affirmed.

lant. V. W. Gilbert and S. M. Graham, both Neville, Stone & Currie, of Meridian, for appelof Meridian, for appellee.

part of the statute granting the appeal and is to be construed as a condition of the right and not as a statute of limitation as now held by a majority, the court did not know what it was talking about when it delivered this decision. In Farmer v. Allen, 85 Miss. 672, 38 South. 38, this court, speaking through Chief Justice Whitfield, in passing upon a similar question, quotes with approval Hendricks v. Pugh, 57 Miss. 157, and Parker v. Johnson, 47 Miss. 632, and Finney v. Speed, 71 Miss. 32, 14 South. 465, held that pleas in bar of appeals from the decrees involved in the case before the court were properly filed. In that case it was insisted that the plea of the statute of limitation could not be pleaded in the Supreme Court. All of these cases recognize the time limit for taking appeals as being a statute of limitation which should be pleaded, and not as a statute imposing a condition upon appeal. If the statute were pleaded, it could be replied to, and the attorney for the town of Tutwiler in his brief said that a petition for appeal was filed within the 2-year limit though no such petition appears in the record. If we consider the question on principle, the same reasons underlie the statute limiting an appeal as underlie a statute limiting bills of review and the commencement of actions generally. An appeal is no more a part of procedure than is a bill of review or an original bill or a declaration in a civil action. Each is in one sense a procedure in court, or a step in enforcing a right, but each deals with the rights and remedies of the litigants. An appeal is the taking of a cause of action from one court to another, where the rights of the parties litigant are passed upon. As a general rule, the statute of limitation deals with remedies; and, while in this state a completion of the period of limitation bars the right as well as the remedy, it primarily and fundamentally deals with remedies, and clearly an appeal comes within the principle of the statute of limitation. The limitation of a period to enforce a right is purely a matter of statute. It did not exist at the common law, and at the common Si Bruce was indicted for murder, and conlaw no right admitted to exist could be pre-victed of manslaughter, and sentenced to the vented from being enforced in the courts. state penitentiary for two years, and he appeals. At the common law a presumption would arise from a long lapse of time that the obligation had been performed or discharged, or that there had been a grant, but this was

PER CURIAM. Affirmed.

BYRD V. STATE. (No. 20252.) (Supreme Court of Mississippi. June 10, 1918.) ty; R. E. Jackson, Judge. Appeal from Circuit Court, Wilkinson Coun

Action between the State and Will Byrd, and from the judgment, Byrd appeals. Affirmed.

W. F. Tucker, of Woodville, for appellant. Frank Roberson, Asst. Atty. Gen., for the State

PER CURIAM. Affirmed,

BRUCE v. STATE. (No. 20224.)
(Supreme Court of Mississippi. June 10, 1918.)
Appeal from Circuit Court, Yazoo County;
W. H. Potter, Judge.

Affirmed.

Campbell & Campbell, of Yazoo City, for appellant. Ross A. Collins, Atty. Gen., for the State.

PARKER v. STATE. (No. 20287.) (Supreme Court of Mississippi. June 10, 1918.) Appeal from Circuit Court, Smith County; W. H. Hughes, Judge.

Action between the State and Boone Parker. From the judgment, Parker appeals. Affirmed. T. J. Wills, of Raleigh, for appellant. Ross A. Collins, Atty. Gen., for the State.

PER CURIAM. Affirmed.

BOARD OF SUP'RS OF HOLMES COUNTY v. BOARD OF SUP'RS OF SUNFLOWER COUNTY et al. (No. 20379.) (Supreme Court of Mississippi. June 10, 1918.) Appeal from Chancery Court, Leflore County; Joe May, Chancellor.

Suit between the Board of Supervisors of Holmes County and the Board of Supervisors of Sunflower County and others. Decree for the latter, and the former appeals. On motion to dismiss appeal. Sustained.

W. L. Dyer, of Lexington, and E. V. Hughston, of Greenwood, for appellant. Whittington & Osborn, of Greenwood, and Chapman & Johnson, of Indianola, for appellees.

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Leftwich & Tubb, of Aberdeen, for appelPER CURIAM. Motion to dismiss appeal lants. Paine & Paine, of Aberdeen, for appelsustained.

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lees.

PER CURIAM. Affirmed.

HARRISON v. HARRISON. (No. 19173.) (Supreme Court of Mississippi. June 17, 1918.) Appeal from Chancery Court, Clay County; A. J. McIntyre, Chancellor.

Suit between Ella Cornelia Harrison and Jos. W. Harrison. Decree for the latter, and the former appeals. Affirmed.

Roberds & Beckett, of West Point, for appellant. T. C. Kimbrough, of West Point, for appellee.

PER CURIAM. Affirmed.

DYE et al. v. COOK et al. (No. 20111.) (Supreme Court of Mississippi. June 17, 1918.) Appeal from Chancery Court, Sharkey County; E. N. Thomas, Chancellor.

Suit between T. W. and Emma B. Dye and E. B. and Annie L. Cook. Decree for the latter, and the former appeal. Affirmed.

Cutrer & Johnson, of Clarksdale, and Percy Bell, of Greenville, for appellants. Watkins & Watkins, of Jackson, for appellees.

PER CURIAM. Affirmed.

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