Dufour v. Chapotel

• Decision Date: 18 April 1898
• Citation: 23 So. 387,75 Miss. 656
• Court: Mississippi Supreme Court
• Parties: WILLIAM DUFOUR ET AL. v. CHARLES L. CHAPOTEL

23 So. 387

75 Miss. 656

WILLIAM DUFOUR ET AL. v. CHARLES L. CHAPOTEL

Supreme Court of Mississippi

April 18, 1898

March 1898

FROM the circuit court of Harrison county HON. H. S. TERRAL Judge.

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

Judgment affirmed.

Mc Willie & Thompson, for appellants.

1. The first assignment of error is predicated of the action of the court below in striking Miss Watt's plea in abatement from the files. She never was served with process in the justice's court, and the judgment there rendered against her was utterly void. The justice of the peace never acquired jurisdiction of her person. If his judgment was utterly void for want of jurisdiction, how can the circuit court have jurisdiction on appeal? It is well settled that the circuit court has only such jurisdiction on appeals from justices' courts as the justice of the peace had. It will not do to say, by way of answer, that the justice of the peace had jurisdiction of the subject-matter of suits upon open accounts. He has not jurisdiction of open accounts in the pockets of creditors. Mere jurisdiction given by law of subject-matters generally, does not invest jurisdiction of a particular controversy. Something more is necessary to give a court jurisdiction of a cause than a constitutional or statutory right to hear and determine the subject-matter when the parties are properly before the court. A justice of the peace does not acquire jurisdiction of a particular cause when nothing more is done than the lodgment with him of the evidence of a debt. He cannot be said to have jurisdiction of a particular suit until the evidence of the debt is lodged with him and a summons is served upon the defendant. Until then he cannot rightly hear and determine the cause. The service of the summons is necessary to invest jurisdiction of the particular suit. True, Miss Watt could have invested jurisdiction in the justice's court by appearance therein, but she did not appear in that court. The justice of the peace, therefore, had no jurisdiction; and can the circuit court, on appeal, have jurisdiction where the justice had none?

2. That offers of compromise are not admissible in evidence is well settled. This subject is not better treated anywhere than in Cowan & Hill's notes to Phillips on Evidence. 2 Phillips on Evidence, p. 218 et seq., note 196 et seq.

3. This is clearly the case of a contract made by plaintiff with the agent of an undisclosed principal. He may elect to hold either the principal or the agent; he cannot hold both. The judgment is erroneous because it does hold both, and the instructions are wrong because they authorized the holding of both. Mechem on Agency, see. 695, et seq.

Bowers & Chaffe, for appellee.

The only question raised that can be properly considered here, is the propriety of striking Miss Watt's plea in abatement from the files. Neither the instructions nor motion for a new trial can be attacked here, because there were no exceptions taken to the rulings of the court below on them.

The plea in abatement was frivolous, and it was properly stricken out. The appeal by Miss Watt was an appearance for all purposes; the trial in the circuit court was de novo, and her plea in abatement, as well as appeal bond, brought her into court for the new trial.

We take issue on the proposition that both the agent and principal cannot be held liable where the agent contracts in his own name, and holds his principal in the background. There is, in all the books, but one utterance that the party must elect viz.: Mechem on Agency,...