Johnson v. Richey Land Improvement & Mfg. Co.

• Decision Date: 13 June 1921
• Docket Number: 21881
• Citation: 88 So. 634,126 Miss. 240
• Parties: JOHNSON, REVENUE AGENT, v. RICHEY LAND IMPROVEMENT & MFG. CO. ET AL
• Court: Mississippi Supreme Court

88 So. 634

126 Miss. 240

JOHNSON, REVENUE AGENT, v. RICHEY LAND IMPROVEMENT & MFG. CO. ET AL

No. 21881

Supreme Court of Mississippi

June 13, 1921

1. APPEAL OND ERROR. Judgment re-establishing lost court record held "final judgment," and appealable.

A judgment of a circuit court re-establishing a lost record in a cause theretofore pending in that court, but in which a final judgment had been rendered, the proceeding to re-establish such lost record being under the provisions of section 3173, Code of 1906 (section 2514 Hemingway's Code), is a final judgment, and under the provision of section 33, Code of 1906 (section 8 Hemingway's Code), giving the right of appeal to the supreme court "from any final judgment of a circuit court in a civil cause," an appeal may be taken therefrom to the supreme court.

2 TRIAL. Cause to re-establish lost court record held erroneously set at first term.

In such a cause that part of section 783, Code of 1906 (section 566 Hemingway's Code), which provides that the issues of fact in a civil cause shall not be tried before the next succeeding term to which the cause is brought without the consent of the parties, except in actions in which the defendant has been personally served with process for thirty days before the return day, applies; therefore it was error in the court below to try said cause at the first term because less than thirty days had intervened between the service of the process on the appellant and the return day thereof, such a cause being governed by the same course of procedure as other civil causes in the circuit court.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Suit by the Richey Land Improvement & Manufacturing Company and others against J. C. Johnson, Revenue Agent. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Stokes V. Robertson, for appellant.

Section 2514, Hemingway's Code, section 3173, Mississippi Code of 1906, outlines the procedure by which court records must be re-established in this state. Among other things this section provides: Process shall issue as in other cases and unknown non-resident defendants may be made parties by publication as in chancery.

A careful consideration of this section is requested. Such a careful reading will disclose that this proceeding to re-establish records is to be conducted as other cases in the court in which the record is to be re-established.

Section 566, Hemingway's Code, section 783, Mississippi Code 1906, expressly provides: "But such issue of fact shall not be tried before the next succeeding term without consent of parties, except in actions in which the defendant has been previously served with process for thirty days before the return date.

This section applies to all cases in the circuit court. There are exceptions to the provisions above shown but these exceptions are clearly set forth in the said section. The exceptions are; 1. Actions to enforce mechanic's liens; 2. Actions commenced by attachment; 3. Actions of replevin. These are the only exceptions.

The process for Stokes V. Robertson, State Revenue agent, the defendant to the Belzoni Land Company's petition for re-establishing this record, was issued May 20, 1920, returnable the first Monday in June, 1920, and was a summons to answer the petition of Belzoni Land Company. This process was served May 27, 1920, just eleven days before the return day thereof.

The Revenue Agent's answer set up issue of fact. These issues were that the papers attached to the land company's petition were not copies of the record in the case; and that Mr. J. C. Johnston, the ex-revenue agent, who filed this assessment had since died and that his heirs are interested in the said matter to the extent of his commissions; and that the state of Mississippi, the Mississippi Levee District, and the county of Washington, were likewise interested parties.

The judgment of the court shows that the case was not tried by consent; but on the contrary the defendant made strong protest and objection to going to trial as is shown by a copy of the defendant's letter, to the judge of the circuit court of Washington county, which is shown in Tr., pages 32, 33, and 34.

Petition for an appeal from the final order of the circuit court of Washington county re-establishing this record was presented to Judge ETHRIDGE of the supreme court; and this appeal with supersedeas was granted by Judge ETHRIDGE, under section 4908 of the Mississippi Code 1906. This section provides that: the judges of the supreme court may severally . . . allow an appeal, and if necessary, a supersedeas, from the final judgment of any circuit court, or the final decree of a chancery court or in any other case in which an appeal is given at any time in which an appeal may be allowed by law.

Appellee contends that this appeal was improperly granted, that this is not the class of cases in which appeals are allowed by law, and that in any event the appeal cannot operate as a supersedeas. Section 33 of the Mississippi Code of 1906, provides that an appeal may be taken to the supreme court from any final judgment of a circuit court in a civil case.

The judgment of the circuit court of Washington county re-establishing this record in accord with the land company's petition was a final judgment. An appeal may be taken from an order granting or denying an application to restore or supply, a lost or destroyed record. 34 Cyc. page 610; Shiver v. Shiver, 45 Ala, 349; Buckman v. Whatney, 38 Cal. 555.

It became necessary for this court to pass on the questions involved in this cause in deciding the cause No. 21, 548, Belzoni Land Company v. Stokes V. Robertson, State Revenue Agent.

We are not advised what reasons were announced by the chancellor for his decree nor what his opinion was as to the various questions that arise in the case. At the threshold of the appellant's case is the question as to whether the record re-established by the circuit court from which an appeal was prosecuted with supersedeas is admissible in evidence in this case. We are not impressed with the argument that a judge of the supreme court has no power to grant an appeal or to grant a supersedeas. The statute expressly empowers judges to grant a supersedeas. The statute expressly empowers the judges to grant such appeals and also the power to grant supersedeas. Section 4908, Code of 1906, section 3186, Hemingway's Code. The appeal and the supersedeas are directly pertaining to the jurisdiction of this court, because judgment having been rendered and an appeal lying from final judgments of the circuit and chancery courts. 34 Cyc. 610, and authorities cited.

We respectfully submit that this case should be reversed and remanded.

J. M. Cashin, for appellee.

This is an appeal prosecuted by Stokes V. Robinson, State Revenue Agent, from an order of the circuit court of Washington county, made at the June Term, 1920, thereof, re-establishing the lost records of said court in the above styled case.

It is respectfully submitted on behalf of the appellee that this order of the circuit court is not a final judgment, within the purview of section 33 of the Code of 1906, section 8 of Hemingway's Code, which is as follows: "An appeal may be taken to the supreme court from any final judgment of a circuit court in a civil case, not being a judgment by a confession or from any final decree of the chancery court; not being by consent by any of the parties or legal representatives of such parties; but such appeal shall operate as a supersedeas only when the party applying for the same shall comply with the terms hereinafter prescribed; and in no case shall such appeal be held to vacate the judgment or decree."

No appeal from such an order is allowed by the statute, and if an appeal is allowable at all, then it is only allowable under the sections of the Code, above quoted, allowing appeals from the final judgment of the circuit court in a civil case.

In order to determine whether an appeal is allowable under these sections of the Codes, it is only necessary to determine whether the order of the circuit court of Washington county re-establishing its lost records in the above styled case is a final judgment against Stokes V. Robertson, State Revenue Agent, within the purview of said sections. It is respectfully submitted that said order is not a final judgment against Stokes V. Robertson or against anyone else. It is merely an order re-establishing its lost records in this above styled case, upon the petition of the Belzoni Land Company, a party interested in having the same re-established, for the purpose of using the same as evidence in a suit pending against it, and is not a judgment against the revenue agent, or anyone else. It is true, he was notified of the pendency of the petition and had a right to answer it, because the statute so provides, he being interested in the re-establishment of said record. A judgment is defined to be the action of the court, ascertaining some act to be done, or foregone by a party. Sullivan v. Thomas, 329 (3 Rich.) 531-546.

A judgment is a determination by the court of the matters in issue in the particular case, as to whether a liability does, or does not exist. Mining Company v. First National Bank, 52 P. 678, 24 Col. 537.

As commonly understood, the judgment is in favor of one party against another, for the recovery of money or property, or requiring one party to do, or refrain from doing some particular act. It is clear that the order appealed from in this case is not a judgment within the definitions above quoted. That order does not require the revenue agent, or any other person to do or refrain from...