Federal Credit Co. v. Zepernick Grocery Co.

• Decision Date: 11 March 1929
• Docket Number: 27733
• Citation: 121 So. 114,153 Miss. 494
• Court: Mississippi Supreme Court
• Parties: FEDERAL CREDIT CO. v. ZEPERNICK GROCERY CO. [*]

121 So. 114

153 Miss. 494

FEDERAL CREDIT CO. v. ZEPERNICK GROCERY CO. ^[*]

No. 27733

Supreme Court of Mississippi

March 11, 1929

Division A

Suggestion of Error Sustained April 22, 1929.

APPEAL from circuit court of Jones county, Second district, HON. R S. HALL, Judge.

Action by the Federal Credit Company against the Zepernick Grocery Company. Judgment for plaintiff in county court was reversed by the circuit court, and the suit dismissed, and plaintiff appeals. Reversed and rendered.

Judgment reversed.

Welch & Cooper, for appellant.

Shannon & Schauber, for appellee.

OPINION

SMITH, C. J.

The appellant sued and obtained a judgment against the appellee in the county court, and after the time for an appeal had expired the case was removed to the circuit court by the appellee on a writ of certiorari under sections 90 and 91, Code of 1906 (Hemingway's 1927 Code, sections 72 and 73). The record which the clerk of the county court filed in the circuit court in response to the writ of certiorari includes the stenographer's transcript of the evidence introduced on the trial in the county court. A motion in the circuit court by the appellant to strike this transcript of the evidence from the record was overruled, and the circuit court then reversed the judgment of the county court and dismissed the suit. From this judgment the plaintiff in the county court has brought the case to this court. In response to a motion so to do, Division B of this court struck the stenographer's transcript of the evidence in the county court from the record. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173.

The evidence on which the trial court acted cannot be looked to by the circuit court in a case transferred to it by writ of certiorari, as was set forth in the opinion of Division B on the motion to strike the stenographer's transcript from the record; but the clerk of the court below committed no error in certifying the transcript of the evidence to this court after the court below had declined to strike it from the record. The overruling by the court below of the motion to strike the stenographer's transcript from the record, in the orderly course of procedure, should have been complained of in the appellant's assignment of error when the case came on to be heard in this court on the merits. The attention of the Division which decided the motion was not called to this fact, and it concurs in what we have here said. The same result would be reached here, however, for the reason that, had the question been raised by an assignment of error, instead of by a motion, the assignment of error would have been sustained.

Leaving this transcript of the evidence, then, out of view, the record that remains consists only of the pleadings, an instruction to the jury to find for the plaintiff marked "Given," an instruction to find for the defendant marked "Refused," and the judgment of the court. It will not be necessary for us to determine whether the instructions are part of the record. The declaration alleges in substance that the Zepernick Grocery Company, a corporation, is indebted to the plaintiff in a certain sum on a contract made by Zepernick Grocery Company with Myer Shelby for the purchase of an automobile on the deferred payment plan, which contract had been assigned to the plaintiff for value. The briefs of counsel refer to promissory notes as the basis for the suit, but no such notes were counted on or filed with the declaration, or appear in the record. The defendant, Zepernick Grocery Company, filed what was styled a plea, alleging fraud and praying that the case be transferred to the chancery court. This plea was not answered, and the record discloses no ruling thereon. Zepernick Grocery Company also filed a special plea alleging "that at the time of...