ON APPLICATION FOR WRIT OF SUPERSEDEAS
This case was docketed in this Court on an application for a writ of supersedeas. The record has not been filed. Annexed to the application is a copy of the decree of the lower court from which the appeal is taken, the lower court's opinion, the cost bond filed by appellant, and a copy of certain resolutions of the Town of Coldwater adopted since the rendition of the final decree below.
Mississippi Power Light Company, appellant, filed its suit in the Chancery Court of Tate County against the Town of Coldwater (Coldwater), North Central Mississippi Electric Power Association (North Central), and Woodruff Electric Power Association (Woodruff).
It appears that appellant is a taxpayer of Coldwater and owns and operates an electric power distribution system in Coldwater under a non-exclusive franchise. North Central is a rural cooperative distributing electrical energy in the vicinity of Coldwater, with about twenty customers inside the corporate limits of Coldwater. Woodruff is a rural cooperative located in the State of Arkansas. Appellant charged that North Central, Woodruff and Coldwater illegally conspired to construct and operate in Coldwater an electric power distribution system in unlawful competition with appellant's established business in that municipality; that North Central had unlawfully "heavied up" its power line to Coldwater to a three-phase line; that Coldwater had illegally issued bonds, the proceeds from the sale of which was intended to be used in the construction of a distribution system in Coldwater, which would unlawfully compete with appellant; that North Central and Coldwater had entered into *Page 641 an illegal contract in connection with the operation of the proposed new electric distribution system; that the proceeds of the sale of said bonds, and the manner in which used would constitute an unlawful lending of Coldwater's credit to North Central; that Woodruff had agreed to lend certain funds to North Central to be used in carrying out the alleged conspiracy; that Coldwater had unlawfully advertised for bids for the construction of the new distribution system; and it also charged that certain acts had been done by North Central and Coldwater without requisite approval of the Public Service Commission. While the bill of complaint is not before the Court, it appears that the ultimate purpose of appellant was to secure an injunction against the defendants enjoining them from proceeding further in establishing and operating a competitive distribution system in Coldwater. A temporary injunction appears to have been issued, the terms of which are not known to the Court.
After the hearing on the merits, the lower court dismissed the bill of complaint as to Woodruff, held invalid the contract between Coldwater and North Central because of an irregularity in failing to give the people of Coldwater sufficient notice before said contract was made, and held that the advertisement for bids for construction by Coldwater of the distribution system was invalid because insufficient notice was given the people of Coldwater. All other relief was denied appellant. The final decree denied appellant permanent injunctive relief.
The relief granted appellant was on the grounds of irregularities in the proceedings by the Town of Coldwater and the court stated in its opinion that such did not mean or indicate that the agreement between Coldwater and North Central was to accomplish an unlawful act. An appeal was allowed by the lower court and appellant filed a $500 cost bond and did not apply for a supersedeas in the court below. *Page 642
Fundamentally, appellant bases its right to supersedeas on the ground that Coldwater has, since the date of the final decree below, passed certain resolutions. These resolutions obviously were designed to correct irregularities which resulted in the lower court declaring invalid the aforementioned contract and advertisement for bids.
(Hn 10) Appellant contends in its oral argument that it is entitled to supersedeas as a matter of right. In Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372, we held that appeals to this Court with supersedeas in civil cases are matters of right only under Sections 29, 31, and 33, Code of 1930 (Sections 1163, 1165, and 1167, Code of 1942), and this only in three classes of cases: (1) Where there is a money decree or judgment, or (2) where there is a decree or judgment for the recovery or against the retention of specific property, or (3) where the decree directs the sale or delivery of real estate, in which cases a supersedeas is allowed as a matter of right where the requisite bond is given. Appeals to this Court with supersedeas from final decrees or judgments in all other civil cases are governed by Section 1169, Code of 1942. In Orkin Exterminating Co., Inc. v. Posey, 218 Miss. 611,67 So.2d 526, we reaffirmed what was said in the Barlow case. The decree in the present case is not a money decree; it is not for the recovery or against the retention of specific property; and it does not direct the sale or delivery of real estate. Appellant is not entitled to a supersedeas as a matter of right.
The second question presented is whether the decree wherefrom appeal is taken is capable of being enforced against appellant by any affirmative process of the lower court which could be stayed or affected by a writ of supersedeas so as to invoke the discretionary power of this Court under Section 1169, Code of 1942.
Whether this Court should exercise its discretion, as distinguished from the considerations that enter into the *Page 643 exercise of such discretion, requires an inquiry into the nature and function of the writ of supersedeas in appellate procedure. In other words, is the decree appealed from such that a writ of supersedeas could affect if the application for a supersedeas should be granted?
(Hn 11) The function of the supersedeas is to stay the enforcement of a judgment or decree of the court below brought up for review by appeal, a suspension of the power of the lower court to issue execution or other process, or to execute such process if already issued. Its effect is to restrain the successful party and the lower court from taking affirmative action to enforce the judgment or decree. 3 Am. Jur., Appeal and Error, Section 535, et seq.; Gumberts v. East Oak Street Hotel Co., 404 Ill. 386, 88 N.E.2d 883. (Hn 12) Supersedeas will not issue to restrain a party from acting or proceeding under a judgment or decree where no process of, or action by, the court below is involved. Solorza v. Park Water Co. (Cal.),183 P.2d 275, and cases therein cited. However, there are situations that may be said to be exceptions to what has just been stated, as, for instance, where the judgment or decree of the lower court orders a fiduciary to distribute funds which are the subject of litigation, in which case the appellate court may have inherent power to issue a writ of supersedeas staying the lower court and the fiduciary from making such distribution pending outcome of the appeal.
(Hn 13) It is generally held that a self-executing judgment is not affected by a supersedeas. The decree involved in the present appeal granted appellant some of the relief for which it prayed, and as to that part of the decree we are not concerned.(Hn 14) Appellant appeals from that part of the decree denying the relief sought by it. The decree appealed from adjudged that appellant, the complaining party, "take nothing"; it is a self-executing decree; no process is required for its enforcement; and there is nothing upon which a supersedeas *Page 644 could operate. Nothing in that part of the decree appealed from changed the status quo of the subject of the litigation and no process could issue under the decree changing the status quo pending appeal. Therefore, no writ of supersedeas will issue when it could serve no function for which such writ is designed. Self-executing judgments or decrees are not affected by a supersedeas; and if supersedeas should issue, it would not affect the decree appealed from. 3 Am. Jur., Appeal and Error, Section 540, Gumberts v. East Oak Street Hotel Co., supra; Solorza v. Park Water Co., supra.
The third and final question raised by the application and argument is whether a writ of supersedeas may be used to obtain affirmative injunctive relief denied appellant by the lower court. It is clear to us from the application and argument in support thereof that supersedeas could perform no useful purpose for appellant unless it serve the function of an injunction to restrain Coldwater and North Central from proceeding to correct the irregularities in certain proceedings preliminary and requisite to the making of a contract between Coldwater and North Central, and the letting of a contract by Coldwater for the construction of a distribution system. It also appears that appellant did not deem a supersedeas appropriate when it requested and obtained an appeal in the lower court, and no supersedeas was there requested. In its brief appellant refers to "subsequently developing conditions", as convincing it that supersedeas should issue.
(Hn 15) Affirmative injunctive relief, denied appellant by the lower court, may not be granted in this Court under the guise of a writ of supersedeas. For reasons already stated, the decree from which the appeal is prosecuted is not such that its enforcement could be affected by supersedeas, and we may not lawfully go beyond the decree and grant affirmative injunctive relief.
Whether as a matter of substantive right appellant is entitled to the relief denied by the lower court is a question *Page 645 not before us on this application. Our decision is addressed solely to the procedural matters discussed.
Application for writ of supersedeas denied.
McGehee, C.J., and Hall, Kyle and Arrington, JJ., concur. ON SUGGESTION OF ERROR ON MOTION TO RETAX COSTS On November 3, 1958, a final judgment was entered reversing this cause and providing as to costs the following: "It is further ordered and adjudged and decreed that the appellant do have and recover of and from the appellees all of the costs of this appeal to be taxed, etc."
On March 14, 1959, the appellant filed in this Court a motion designated "Motion to Re-tax Costs," moving the Court to add to the amount of other costs taxable the amount which accrued to the court reporter for transcribing his notes of the evidence. It was averred in said motion that the chancery clerk did not include in the transcript a statement of the costs accruing to the court reporter. The averments of the motion were meager and unsupported by briefs of counsel, and in the light of the matter as then so meagerly presented to this Court, we overruled the motion designated "Motion to Re-Tax Costs" under the authority of Rule 19 of the Rules of this Court, providing that, "All motions to re-tax costs shall be filed within sixty (60) days from the entry of the final judgment in the case."
The appellant has now filed what it terms a suggestion of error suggesting that the Court erred in overruling its aforesaid motion. This so-called suggestion of error was filed on April 21, 1959, and a copy thereof, according to the certificate of counsel appended thereto, was, on April 21, 1959, duly mailed to opposing counsel.
The following now appears from statements of facts set forth in the so-called suggestion of error under oath: *Page 646 The chancery clerk initially transcribed three volumes of the record and appended thereto a statement of his costs therefor aggregating $385.50. The other volumes of the record were transcribed by James O'Day, official court reporter, and at page 675 of this transcript he appended thereto his certificate as follows: "I, James T. O'Day, official court reporter of the Chancery Court of Tate County, Mississippi, hereby certify that I am entitled to the sum of $343.50 as fees in cause No. 6605 in said court, being for transcript of $338,500 words at 10¢ per folio, $338.50, and carrying charges on filing complete transcript of record with the chancery clerk, $5.00, or total of $343.50. I further certify that this amount has been paid."
This certificate bore date of July 30, 1958. A certificate of the chancery clerk filed herein shows that this amount was paid by the appellant.
In transmitting the record to this Court, the Chancery Clerk made a statement on the transcript of the aforesaid costs accruing to him in the sum of $385.50, pursuant to Section 1193, Vol. 2, Recompiled, Mississippi Code of 1942, but did not make a statement on the transcript of the aforesaid costs accruing to the court reporter. His explanation of this omission as set forth in his certificate attached to the document filed as a suggestion of error is that since the court reporter's certificate showed that the fees due him for transcribing his notes had been paid, he was of the opinion it was not proper for him to tax and certify to the Supreme Court said costs when he forwarded to the Supreme Court the transcript of the evidence.
(Hn 16) It is urged in the so-called suggestion of error that this Court erred in overruling the appellant's aforesaid motion designated, "Motion to Re-tax Costs," and that the order overruling said motion should be set aside and an order entered directing that the costs accruing to the court reporter in the sum of $343.50 be added to *Page 647 the other costs taxable against the appellees. We think there is merit in this contention.
While the appellants' aforesaid motion, which was overruled on April 6, 1959, was designated "Motion to Re-tax Costs", it was not in fact a motion to re-tax costs but a motion to have said sum of $343.50 accruing to the court reporter for the transcript of the evidence added to the other costs taxable against the appellees. Said motion is in fact, and should be interpreted to be, a motion to include in the costs taxable against the appellees costs which had theretofore been omitted in taxing the bill of costs, as is provided for in Section 1595, Vol. 2, Recompiled, Mississippi Code of 1942, reading as follows:
"Costs omitted in taxing the bill of costs may be taxed at anytime upon application to the court; but if the costs, as taxed before, have been paid, the party against whom the retaxation is sought shall have five days' notice of the application; and any erroneous taxation of costs may at any time be corrected by the court on application of the party aggrieved, five days' notice of the motion being given if the rights of any other than the clerk who taxed the costs be involved." (Emphasis ours)
The case is not one where it is being sought to correct the judgment as to costs. The judgment in this case taxed the costs against the appellees. It is not sought to change that judgment but only to have included in the taxable costs the item of costs accruing in favor of the court reporter, which item was erroneously omitted in taxing the bill of costs. The relief thus sought is a relief which the court may grant at any time under said Section 1595, Vol. 2, Recompiled, Mississippi Code of 1942. We treat the motion and the so-called suggestion of error as an application to the court to direct that the aforesaid item of $343.50, accruing in favor of the court reporter and omitted in taxing the bill of costs be included in the bill of costs. *Page 648
Further, we deem it appropriate to say that it is not disputed that the aforesaid item of $343.50 accruing in favor of the court reporter is a proper item of costs to be taxed against the appellees and that it would be a grave injustice under the facts and circumstances of this case to relieve the appellees of this item of costs and to impose the same upon the appellant contrary to the judgment of the court which assessed all costs against the appellees.
Therefore, even if this were a motion to re-tax costs as contemplated in Rule 19 of the Rules of the Supreme Court, we would feel impelled to suspend Rule 19 under the authority of Rule 33 of the Rules of this Court, and sustain the motion, since to do otherwise would result in manifest injustice. This position finds support in the very recent case of Clara Richardson, et al. v. George V. Cortner, Trustee, 105 So.2d 456, decided October 6, 1958. Since we treat the aforesaid motion and so-called suggestion of error as an application to this Court to correct an omission in taxing the bill of costs, and since a copy of the aforesaid motion and suggestion is shown to have been duly mailed to opposing counsel more than five days prior hereto, we are of the opinion that the provisions as to notice as set forth in said Section 1595, Vol. 2, Recompiled, Code of 1942, were sufficiently complied with and we are further of the opinion that the application designated as a suggestion of error be granted, and that the order heretofore entered overruling the motion designated as a "Motion to Re-tax Costs" be set aside and that the Clerk of this Court be and he is hereby directed in taxing the bill of costs taxed against the appellees to include therein the aforesaid item of $343.50 accruing to the court reporter for his transcript of the evidence. We may add that the record in this case discloses that the court reporter had appended thereto his certificate as to the amount due him for the transcript, and that on the basis of this certificate, the Clerk of this *Page 649 Court should have included in taxing the bill of costs this item of costs.
In McDonald, et al. v. Spence, et al., 179 Miss. 348,176 So. 607, the Court said: There seems to be no statute requiring the reporter of the trial court to file a certificate of his fee for transcribing his notes of the evidence, so that the clerk of this court, in taxing the same, must be governed by the number of words appearing in the reporter's transcript. The reporter, however, should, in justice to the clerk of this court, indicate, by certificate or otherwise, what his fee is."
This is exactly what the court reporter did in this case, and the omission of the clerk to include the reporter's fee in taxing the bill of costs should, in all justice, be corrected by including this item in the bill of costs taxable against the appellees. Accordingly appellant's application to have said omitted item of cost included in the bill of costs should be and it is granted, and the order of this court heretofore overruling the appellant's motion to have added to the bill of costs the aforesaid item accruing to the court reporter is hereby set aside, and the Clerk of this Court is directed to include the aforesaid item in the bill of costs taxable against the appellees.
Application to have omitted item of costs included in bill of costs granted.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.