Barrett v. Pickett

• Decision Date: 03 June 1918
• Docket Number: 20007
• Citation: 78 So. 777,117 Miss. 825
• Court: Mississippi Supreme Court
• Parties: BARRETT v. PICKETT

78 So. 777

117 Miss. 825

BARRETT v. PICKETT

No. 20007

Supreme Court of Mississippi

June 3, 1918

Division B

APPEAL from the circuit court of Yazoo county, HON. W. H. POTTER Judge.

Suit by W. A. Pickett against Jesse Barrett. From a judgment of the circuit court dismissing the appeal from a judgment of a justice of the peace for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

A. S Coody, for appellant.

The one main point to be settled in this case is whether or not the learned justice of the peace should have sent the papers to the circuit court as an appeal, on the papers and bond filed with him by Barrett. It is well understood what is necessary to take an appeal from the justice of the peace court to the circuit court, the one essential thing being to file a bond in the sum double the judgment and the cost of the court.

The essential part of an appeal bond is that it shall have solvent sureties on it; that is, be signed by persons able to pay the amount that may be required of them. Any other formal part is written into it by law.

It is the contention of appellant that he tendered to the justice of the peace a good and valid bond, signed by men solvent and able to pay the amount of the judgment. It will be noted here that the worth of the bondsmen has never been questioned, and the record stands for the fact that they were sufficient sureties.

But it is contended by the appellee, or was contended by him in the circuit court, that the bond was not a legal one because the penalty was not in the proper amount. The justice of the peace did not refuse to sign the bond because the sureties were not sufficient or solvent, but because the space left for the penalty was blank. He assumed that it was worthless and admits that he threw it aside, together with the other papers in the case, saying, "I have no use to keep those old things."

The one question to be decided here, is, did the fact that in the blank space left for the penalty to be written in, there was nothing, rendered the bond void and incapable of amendment.

It will be noted that appeals from the justice of the peace are taken as provided in section 83 of the Code of 1906, and as amended by the Laws of 1912, Section 83 says that the amount of the bond shall be "in the penalty of double amount of the judgment, or double the value of the property involved, and all costs accrued and likely to accrue in the case."

The statute fixes the penalty with certainty, so that in this case there could have been no possible doubt of the bond being proper. The name and style of the suit was stated therein, together with the date of the judgment, and the amount. The sureties were timely and solvent, and there was no reason in the world why the bond should not have been approved.

Section 1022, Code of 1906, reads as follows: "When any bond recognizance, obligation, or undertaking of any kind shall be executed in any legal proceeding, or for the performance of any public contract, or for the faithful discharge of any duty, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how it is conditioned; and the persons executing such bond or others liable to judgment or decree on such bond thereon and thereby, and shall be liable to judgment or decree on such bond or undertaking as if it were payable and conditioned in all respect as prescribed by law, if such bond or other obligation or undertaking had the effect in such proceeding or matter which a bond or other undertaking payable and conditioned as prescribed by law would have had; and where any such bond or undertaking is not for any specified sum. It shall bind the parties executing it for the full amount for which any bond or undertaking might have been required in the state of the case in which it was given."

Nothing can be plainer than this statute, and with the amount of the judgment written in the face of the bond, there could not be doubt as to its validity, or any uncertainty as to its provisions.

No one would ever contend for an instant, that, had this case been appealed and judgment rendered on the appeal bond, that it could not have been collected. And that is all that is demanded of a bond, that it be collectible.

Section 3463 provides for official bonds and section 3484 provides for bonds taken by "any officer in the discharge of his duty." Both these sections have a provision that protects any bond because of any informality. It is the settled practice in this state, especially, to disregard any informality in bonds, and to simply require them to set forth the intent of the undertaking. The law does the rest.

Speaking of an informal official bond, Justice TRULY said: "When one signs what purports and is intended to be an official bond, whether as principal obligor or surety, the law writes in all necessary recitals, including proper penalty." State v. Smith, 87 Miss. 551.

This is a companion case on a bond, like in this case, and the bond would be even more binding in favor of an individual than in case of the state.

Sec. 775 of the Code of 1906, which is so frequently cited, provides for amendments and the decisions of this court are uniformly to the effect that pleadings of all kinds and any proceeding, may be amended so as to cure any technical defect. It is useless to cite authorities on a matter so plain.

No question has been raised in this case about the writ of certiorari being the proper remedy to bring this case before the circuit court for review. However, attorney for appellee in his motion to dismiss in the lower court suggests that no point of law is involved in the matter brought up, but merely a question of fact.

In the case of Redue v. Gamble, which is a case very much like the one at bar, it was held that a writ of certiorari would answer to bring the suit to the circuit court, where the case would be reviewed. In this case, reported in 85 Miss. 165, there was the very point of a bond in an insufficient penalty, and a refusal of the justice of the peace to approve it and send up the appeal. See also the case of Robinson v. Mhoon, 68 Miss. 712.

In the present case, appellant Barrett has made a bona-fide effort to take an appeal to the circuit court. He desired his appeal in good faith, believing that he had been wrongfully sued, and a judgment rendered against him which was not just. He tendered a bond which correctly recited the essential facts of the case, signed by solvent persons, and he is entitled to have the merits of his case passed upon by the circuit court.

M. B. Montgomery, for appellee.

In the third "cause" shown, appellant alleged, that the justice was informed that defendant desired an appeal, and that within the ten days an appeal bond was signed by good and sufficient sureties and mailed to the justice of the peace, with instructions to fill in and make such alterations and insertions as in his sound discretion would be most nearly right and in conformity with justice. That the justice of the...