Brennan v. Straas

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: Brennan v. Straas, 37 So. 956, 85 Miss. 341 (Miss. 1905)
• Decision Date: 27 February 1905
• Parties: EDWARD F. BRENNAN v. BENTRAM STRAAS

37 So. 956

85 Miss. 341

EDWARD F. BRENNAN v. BENTRAM STRAAS

Supreme Court of Mississippi

February 27, 1905

November 1904

FROM the circuit court of Jefferson county, HON. MOYSE H WILKINSON, Judge.

Brennan appellant, was plaintiff, and Straas, appellee, defendant, in the court below. The suit was begun before a justice of the peace, who decided for defendant Straas, and Brennan appealed to the circuit court. The circuit court, upon Straas' motion, dismissed the appeal, and plaintiff Brennan appealed to the supreme court.

When the justice of the peace decided against Brennan, he filed his appeal bond within the five days' (Code 1892, § 82) time prescribed by law, and said bond was approved by the justice of the peace who tried the case. The justice of the peace died in a few days thereafter, before the next term of the circuit court of the county, and his docket, papers etc., were delivered to the circuit clerk, as required by § 2432, Code 1892. A justice of the peace, successor to the dead magistrate who tried the case, was afterwards elected and qualified; but between the time of the death of his predecessor and his induction into office, a term of the circuit court had been held, and the record in this case was not filed in that court on or before the first day of the term. The successor of the justice of the peace who tried the case filed all the original papers in the case, with a copy of the record, to the next term of the circuit court after he qualified. Appellee Straas filed a motion in the circuit court to dismiss the appeal on the ground that the appeal was barred because the papers were not filed on or before the first day of the next term of the circuit court after the judgment was rendered. The court sustained this motion.

Reversed and remanded.

H. Cassedy, for appellant.

It is true that § 84, Code 1892, under ordinary circumstances, when taken alone, if not strictly complied with, would bar an appeal to a succeeding term of the court after the term to which the appeal was returnable. But this section must be construed, in a case of this character, with sec. 2432, and when so construed, the limitation is suspended until the election and qualification of a successor to the deceased justice of the peace.

There was no justice of the peace authorized by law to transmit these papers. It is true that the circuit clerk had in his custody the docket, statutes, and papers of the deceased justice, but he could only give mere certified copies of the originals to the appellant to file, which would not have availed him anything. Because the papers and dockets were in his hands as custodian, they were not in the court by reason of that fact; and if they were, the action of the court in dismissing the appeal was erroneous. A certified copy of the original papers would not satisfy sec. 84 of the code, because the law provides that the originals shall be filed. It is not the duty of the circuit clerk to file them, but the duty of the justice of the peace; and if there is no justice of the peace, what was appellant to do? He could not abstract the originals from the custodian, and certified copies would give the circuit court no jurisdiction.

Does the last clause of sec. 2432 give "any justice of the peace of the...