Berry v. Berry

• Decision Date: 28 November 1932
• Docket Number: 30264
• Citation: 144 So. 695,165 Miss. 472
• Court: Mississippi Supreme Court
• Parties: BERRY v. BERRY

144 So. 695

165 Miss. 472

BERRY v. BERRY

No. 30264

Supreme Court of Mississippi

November 28, 1932

Division A

Suggestion Of Error Overruled January 9, 1933.

APPEAL from circuit court of Simpson county, HON. E. M. LANE, Judge.

Suit by M. W. Berry against R. T. Berry. From a judgment of the circuit court in favor of the plaintiff, on appeal from a default judgment entered in the justice court, the defendant appeals. Affirmed.

Affirmed.

W. M. Lofton, of Mendenhall, for appellant.

The court below erred in overruling the motion of appellant, who was defendant in the court below, to dismiss said cause for want of jurisdiction, the specific reason being that said cause had not been tried in any regularly and legally constituted justice court.

If any person elected or appointed to any state, state district levee board, county, county district or muncipal office, shall fail to qualify as required by law on or before the day of the commencement of his term of office, (or for any other cause any such officer shall hold over after his regular term of office expires under the authority given him to hold over until his successor is appointed or elected and qualified) a vacancy in such office shall occur thereby and it shall be filled in the manner prescribed by law, as provided by section 103 of the Constitution for filling vacancies in such offices, unless the failure to qualify arises from there being no officer to approve the bond of such officer-elect, and except the governor-elect, when the legislature fixes by resolution the time of his installation.

Section 2284, Code of 1930.

There cannot be a vacancy, and at the same time a de facto officer performing the duties appertaining to such office. If there is a vacancy in said office, it is not filled by an officer either dejure or de facto. Vacancy means empty, an office or position open to applicants, not occupied; as a vacant building, or a vacant position. Or as some writer has said, when applied to an office, the state of being destitute of an incumbent to officiate in such office; an office that is not occupied.

In the case at bar, the record shows, beyond dispute, that M. E. Daniels was elected to the office of justice of the peace at the regular election in November, 1931, and that he possessed all the qualifications for said office at the time, and that the term of J. L. Phillips expired on the first Monday in January, 1932, and under this state of facts, which are not disputed, section 2284, of the Code of 1930, says that there is a vacancy in said office. So it follows as a natural sequence, that J. L. Phillips is merely a private citizen, with no judicial powers whatsoever, and any attempt on his part to preside over a justice court is ridiculous and absurd and his attempt to try the case at bar was a nullity and so this case has never been legally tried.

Sections 2070 and 2881, Code of 1930 have no application to the case at bar. The case at bar is controlled by section 2884 of the Mississippi Code of 1930.

Ovie L. Berry, of Newhebron, for appellee.

J. L. Phillips was a regularly and legally qualified justice of the peace when this case was tried in his court.

The term of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified.

Section 2881, Code of 1930.

The record shows that M. E. Daniels did not qualify as required by law.

Therefore, J. L. Phillips under section 2881, Code of 1930, term of office had not expired, according to the record in the case, for the reason that his successor, M. E. Daniels, did not qualify as required by law.

Argued orally by W. M. Lofton, for appellant, and by Ovie L. Berry, for appellee.

OPINION

Cook, J.

One J. L. Phillips was a regularly elected, qualified, and acting justice of the peace of Simpson county, for the four-year term ending on the first Monday of January, 1932. At the regular election in November, 1931, he was not a candidate to succeed himself, and one M. E. Daniels, who was a candidate at that election, received the highest number of votes, and was declared to be elected. Although qualified by law to hold the office, the said M. E. Daniels failed and refused to qualify, and the said J. L. Phillips continued to discharge the duties of the office after the first Monday of January, 1932.

On the second day of January, 1932, the appellee filed this suit in the justice court of the said J. L. Phillips to enforce a vendor's lien on certain personal property, and the cause was heard by the said J. L. Phillips on February 2, 1932. The appellant failed to appear at the trial in the justice court, but prosecuted an appeal from the default judgment entered therein. In the circuit court, he filed a motion to dismiss the cause on the ground that the purported judgment of the justice court was void, for the reason that it was not rendered by a regularly and legally constituted justice court; it being the contention of the appellant that the said J. L. Phillips was without lawful authority to hold over or discharge any of the duties of the office after the first Monday of January, 1932. This motion was overruled, and upon the trial of the cause a final judgment was entered in favor of the appellee.

On appeal to this court, the only assignment of error presented is that the court below erred in overruling the motion to dismiss, and in...