City of Hattiesburg v. Pritchett

• Decision Date: 04 May 1931
• Docket Number: 29433
• Citation: 134 So. 140,160 Miss. 342
• Court: Mississippi Supreme Court
• Parties: CITY OF HATTIESBURG v. PRITCHETT

134 So. 140

160 Miss. 342

CITY OF HATTIESBURG v. PRITCHETT

No. 29433

Supreme Court of Mississippi

May 4, 1931

Division A

1.EMINENT DOMAIN.

Appeals from special eminent domain courts consisting of justice of the peace and jury should be brought to circuit court and there tried de novo (Code 1930, sections 1481,1497).

2.EMINENT DOMAIN.

Special eminent domain courts are abolished in counties having county courts, and their jurisdiction is vested in county courts(Code 1930, sections 693,704).

3.EMINENT DOMAIN.

Appeal in suit of eminent domain, brought in county court, is not triable de novo on appeal to circuit court(Code 1930 sections 693,704).

HON. W J. PACK, Judge.

APPEAL from circuit court of Forrest county., HON. W. J. PACK Judge.

Suit of eminent domain by the City of Hattiesburg against S. T. Pritchett.From a judgment of the circuit court affirming a judgment of the county court in favor of the defendant for damages for land condemned, the plaintiff appeals.Affirmed.

Affirmed.

D. E. Sullivan, of Hattiesburg, for appellant.

The only change in eminent domain procedure is that the county judge takes the place of the justice of the peace in counties having a county court.Otherwise the eminent domain chapter is unchanged and all the cases and procedure controlled by that chapter.

When the county judge tries the case, he must proceed under the same law the justice of the peace does, and when an appeal is taken to the circuit court when the county judge was acting the same right of trial by jury in the circuit court applies just as it would if a justice of the peace had held the court.

Chapter 26, Eminent Domain, Revised Code of 1930;Section 1497, chapter on Eminent Domain.

The county court was created in 1926, with the foregoing section then in the Code of 1906, which was brought forward in the Code of 1930, unchanged, four years after the creation of the county court, and if the legislature meant to change this section so as to deny a jury trial in the circuit court when the appeal was from the county court in an eminent domain suit, why did it not do so?

Changes and repeals of laws by implication are not favored.

The statute creating the county court, and giving the county judge jurisdiction in eminent domain suits and the chapter 26, Eminent Domain, and especially section 1497 of said chapter, granting the right of a trial de novo in the circuit court are not repugnant, and therefore, section 1497, in the eminent domain chapter, is not repealed or modified by the county court chapter.

On repugnant laws, seeAscher v. Magee,101 Miss. 36, 57 So. 299, andHolly Springs v. Marshall County,104 Miss. 752, and61 So. 703;Darnell v. Johnson, 109 Miss.68 So. 780.

Morris & Wingo, of Hattiesburg, for appellee.

The statutory method of proceedings in Eminent Domain were modified and changed by the county court act, chapter 131, Laws of 1926.

The county court is given jurisdiction of Eminent Domain proceedings.

Any appeal in an Eminent Domain proceeding to the circuit court from the county court is to be appealed in accordance with the statutory method of appeal, as provided by law.There is no manner of appeal provided from the county to the circuit court, except that fixed by section 5, chapter 131, Laws of 1926, the same being section 729 of Hemingway's Code of 1927, section 704, Code of 1930.

The circuit court did with this appeal exactly what the statutory law of this state directed that court to do, that is, to try the appeal upon the record as made in the county court.

OPINION

Smith, C. J.

The appellant, a municipal corporation, instituted a suit of eminent domain in the county court of Forrest county to condemn land owned by the appellee for use by the appellant as a street, and, from a judgment awarding the appellee damages in the sum of four hundred fifty dollars, the appellant, city of Hattiesburg, appealed to the circuit court.In that court a motion was made by the appellant for a trial of the case de novo, which motion...