ON MOTION TO DOCKET AND DISMISS APPEAL
PRATHER, JUSTICE, FOR THE COURT:
The appellants, Mrs. Diamond Garrett, Mrs. Leora Davis, and Mrs. Geneva Thompson, filed a lawsuit against several doctors and other medical personnel in order to recover damages for the alleged wrongful death of a relative. In the trial held before the Circuit Court of the
First Judicial District of Hinds County, the trial judge directed a verdict in favor of the appellees. The appellees now contend that the appellants' appeal must be dismissed for failure to timely pay the costs of appeal and for failure to give timely notice to the court reporter to transcribe her notes of the trial. We sustain the motion to dismiss.
This case could easily be characterized as one of unnecessary delay from its inception. It began on April 3, 1975, and finally proceeded to trial on September 15, 1981, in spite of appellees' motion to dismiss it as a stale case on June 8, 1981. The last post-trial motion was overruled on October 16, 1981, and forty days later, on November 25, 1981, the appellants filed their petition to appeal with the circuit clerk. On January 20, 1982, the circuit clerk filed his estimate of the court costs necessary for appeal, but there was no immediate action taken by the appellants to prepay those costs or to give notice ' o the court reporter to transcribe the record.
In an effort to bring the case to a conclusion, the appellees filed a motion in the lower court to strike the appellants' petition to appeal on March 2, 1982. The lower court judge considered this motion and found that the appellants had not paid the appeal costs nor noticed the court reporter. Nonetheless, the order granted further time to the appellants, up to and including Monday, March 15, 1982, to meet those requirements. Finally, estimated costs were paid, and the reporter filed her transcript, as well as a statement of the balance due, with the circuit clerk on September 3, 1982.
Upon payment of the balance of court costs on December 10, 1982, the record was then filed with this Court on December 13, 1982. Subsequently, on December 21, 1982, the appellees filed their present motion to docket and dismiss, or in the alternative, to strike the transcript.
One issue presented for consideration is whether the costs of appeal were timely paid by the appellants. In this case, the appellants chose to pursue their appeal by filing a petition with the circuit clerk. See Miss. Code Ann. 11-51-15 (Supp. 1982) (technical requirements of the petition) and 11-51-51 (Supp. 1982) (appeals may be granted
In Dixieland Food Stores, Inc. v. Kelly's Big Star, 384 So. 2d 1031 (Miss. 1980), we considered the jurisdictional steps necessary for perfecting an appeal by petition to a circuit clerk. Our opinion stated:
We therefore conclude that in cases where petition for appeal is filed and granted by the clerk of the trial court, the appeal is taken when the petition is filed. Of course, appellant must pay the costs" as then required, "which means after the estimate of costs is prepared by the clerk and before the record is filed in this Court. [Emphasis added]. Id. at 1034].
This quoted language provides that the filing of the petition with the circuit clerk is the only jurisdictional step which must be completed within the forty-five day period to perfect an appeal by this procedure.
In the case under consideration, the appellants did file their petition within the required forty-five day period. However, there is a procedural requirement imposed by Dixieland which directs the appellant to pay the cost of appeal after the estimate has been prepared by the clerk. In our opinion, the appellant failed to make a reasonable effort to comply with this procedural requirement. Miss. Code Ann. 11-3-5 (Supp. 1982).
Under the normal procedure, the trial court clerk should complete his estimate of costs within five days from the rendition of the final judgment. Miss. Code Ann. 11-51-61 (Supp. 1982). The delay in this case, however, was ninety-six
days. (October 16 - January 20). In previous cases, when a clerk has failed to perform his statutory responsibilities, we placed an affirmative burden on the appellant to pursue motions to compel compliance. See, e.g. Oswalt v. Austin, 192 Miss. 653, 6 So. 2d 924 (1942) (appellant should apply for a writ of certiorari to direct clerk to file overdue transcript); Miller v. Phipps, 152 Miss. 437, 119 So. 170 (1928) (appellant, after case has ...