Keys v. Borden

• Decision Date: 18 January 1937
• Docket Number: 32512
• Citation: 171 So. 887,178 Miss. 173
• Court: Mississippi Supreme Court
• Parties: KEYS v. BORDEN et al

171 So. 887

178 Miss. 173

KEYS v. BORDEN et al

No. 32512

Supreme Court of Mississippi

January 18, 1937

Division B

Suggestion Of Error Overruled March 1, 1937.

APPEAL from circuit court of Harrison county HON. W. A. WHITE Judge.

Suit by Bernice Keys against P. L. Borden and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Barnett, Jones & Barnett, and John E. Stone, all of Jackson, and Bidwell Adam, of Gulfport, for appellant.

A voluntary non-suit, by order of county court or circuit court, on motion of the plaintiff, dismissing case on appeal from a justice of the peace court, may be granted at any time before the jury retires to consider its verdict in the same manner and with the same effect as in an original suit.

Sections 64 and 67, Code of 1930; Telephone Co. v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newell, 61 Miss 437; Railroad Co. v. Andrews, 61 Miss. 474.

The effect of the supersedeas is to prevent the use of the judgment during the time it is superseded. The proceeding lies dormant; no action can be taken which depends upon the judgment for its validity.

Land Co. v. Robertson, 125 Miss. 337, 87 So. 669.

When the case goes to the circuit court, or county court, on appeal from a justice of the peace, under the statute authorizing appeals operating as a supersedeas of execution on the judgment and providing that the case shall be tried anew, the circuit court or the county court, to which the appeal has been taken, has original jurisdiction. The jurisdiction to try causes de novo and to decide them on the law and the evidence according to the right of the cases, independent of the rulings of the lower court, is original and not appellate.

In re Brunette, 85 P. 375, 73 Kan. 609; Ex parte Henderson, 6 Fla. 279; Section 705, Code of 1930; 18 C. J. 1170, sec. 59; Dreyfus v. Mayer, 69 Miss. 282, 12 So. 267.

Where appeal from the justice's court is perfected by defendant so as to remove the cause into the county court for trial de novo, the appeal vacates the justice's judgment so that a dismissal of the action does not reinstate or revive the judgment appealed from; and where an appeal is perfected by defendant from a judgment in a justice's court and the cause is removed into the county court for trial de novo, appellant stands as a party defendant in the county court and the case stands as though it had been originally brought in the court.

Telegraph Co. v. McKee Bros., 135 S.W. 658, 14 Dec. Dig. (2d), 367; Rev. St. 1909, sec. 1980; Leonard v. Security Bldg. Co., 162 S.W. 685, 179 Mo.App. 480, 14 Dec. Dig. (2d) 367; Sections 594, 595, Code of 1930.

Plaintiff may take a nonsuit at any time before trial when his case stands for trial de novo, even upon a reversal and remand for a new trial.

18 C. J. 1158, sec. 30; Carden v. Railroad Co., 11 Ala.App. 525, 66 So. 921; Moyett v. Knott, 16 Wyo. 108, 92 P. 240.

When plaintiff appeals to the circuit court from a justice's court, and then exercises his right to dismiss the cause or take a nonsuit, the case is taken out of court and the judgment of the justice is thereby vacated.

Leonard v. Security Bldg. CO., 175 Mo.App. 480, 162 S.W. 685; Eckard v. Superior Court, 195 Cal. 473, 234 P. 80; Hartsock v. Insurance Co., 223 Ill.App. 433.

A plaintiff may, upon trial, submit to a nonsuit or voluntary discontinuance before trial in a suit brought into the circuit court by appeal from a justice.

Castator v. Royes & Blandford, 221 Mich. 591, 192 N.W. 696; Garfield v. Steel Corp., 223 Mich. 694, 194 N.W. 526.

In a trial de novo in the circuit court of the case appealed from the justice court, the judgment of the justice is not reversed or affirmed; but a new, distinct and independent judgment, as may be required by the merits shown on the trial is rendered by the circuit court.

Abraham v. Alford, 64 Ala. 281; Horsh v. Heflin, 76 Ala. 499; Lucedale Commercial Co. v. Strength, 163 Miss. 646, 141 So. 769.

We submit that a judgment or order of any court of record is presumed to be correct and that the court rendering said judgment is presumed to have jurisdiction of the subject matter.

Duncan v. McNeil, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Canton v. Cooper, 39 Miss. 784; 18 C. J. 1172; Moore-Mansfield Construction Co. v. Marion, etc., Traction Co., 52 Ind.App. 548, 101 N.E. 15; Horne v. Mooreland, 153 So. 668; Stalling v. Sorrells, 134 Miss. 383, 100 So. 10; Federal Credit Co. v. Rogers, 148 So. 353.

An appeal bond in a penalty less than the minimum sum required by law is not void but may be amended. The jurisdiction of the court does not depend on the correctness of the appeal bond.

Section 74, Code of 1930; Gaddis v. Palmer, 60 Miss. 758; James v. Woods, 65 Miss. 528, 5 So. 106; Denton v. Denton, 77 Miss. 375, 27 So. 383; Thorsen v. I. C. R. R. Co., 112 Miss. 139, 72 So. 879; DeLaval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522; Barrett v. Pickett, 117 Miss. 825, 78 So. 777; Wallace v. State, 149 Miss. 198, 115 So. 342; Williams v. Johnson, 167 So. 639.

According to the theory of appellees, an appeal bond in a penalty less than the minimum sum required by law is void, a nullity, with the effect that an appeal was really never had and jurisdiction never obtained, That theory, however, is clearly contradictory to the law as decided by this court. After the appeal bond was approved by the justice and the transcript of the record transmitted by the justice to the county court, the county court had full jurisdiction of the case.

Watkins & Eager, of Jackson, and S. C. Mize, of Gulfport, for appellees.

It was frankly conceded in the lower court, and likewise conceded here, that where a plaintiff has properly appealed to the county court from an adverse judgment that a nonsuit may there be taken and another suit later filed on the same cause of action. This court has several years ago decided the exact question.

Lucedale Commercial Co. v. Strength, 163 Miss. 646, 141 So. 769.

Neither do appellees contend, in the second place, that strictly speaking the appeal bond where for an insufficient amount is void, but as long since said by this court it is simply defective and may by timely and proper amendment be perfected.

Denton v. Denton, 77 Miss. 375, 27 So. 383.

The two propositions involved in this appeal so far as these appellees are concerned are as follows:

(1) Where plaintiff attempts to appeal from an adverse judgment rendered by a justice of the peace, and furnishes a purported appeal bond in the penalty of only thirty dollars, whereas the statute requires a minimum bond of one hundred dollars, and upon the record reaching the county court that court enters an order of dismissal, and no leave or permission ever having been requested by plaintiff to amend or perfect the bond, does such dismissal operate as a revival of the judgment of the justice of the peace, and such judgment constitute res adjudicata where properly pleaded on a subsequent suit with respect to the same parties and cause of action ?

(2) And, under such circumstances where in the second suit the servant of the defendant in the original suit is for the first time named as an additional defendant, and where the original cause of action was predicated solely on the alleged negligence of the said servant within the scope of the original defendant's employment, is the original judgment res adjudicata, and may the servant in the second suit plead such judgment by way of estoppel ?

We respectfully submit that both of these questions are answered in the affirmative.

Section 64, Mississippi Code of 1930, provides the exclusive method for appeal from a judgment of the justice of the peace court, and stipulates that the appeal bond "in no case to be less than one hundred dollars", and "the appeal, when demanded and bond given, shall operate as a supersedeas of execution on such judgment. "

Section 74, Code of 1930.

Where a proper appeal bond is executed the effect of the appeal is to vacate and supersede the judgment of the justice of the peace court. It is appellees' contention that where a defective appeal bond, to-wit, one in a wholly insufficient amount, is given and approved by the justice of the peace that the effect of said appeal at best is to merely suspend the operation of the judgment of the justice of the peace until and unless said bond is amended and perfected as provision by section 74; and if the appellate court enters an order of dismissal, and without the bond being amended, or leave to amend requested by the appellee, then upon the entry of the dismissal order the judgment of the justice of the peace is revived and reinstated.

Howell v. Miller, 151 Miss. 372, 118 So. 178; DeLaval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522.

It affirmatively appears from the special pleas of both appellees that the dismissal order of the county court was entered upon the convening of said court at the regular January, 1936 term, and on January 17, 1936, and that the thirty dollars appeal bond "was never sought to be amended, nor was any other bond attempted to be filed in said case." We respectfully submit that the purpose of the statute is to afford the appealing party an opportunity to amend a defective or insufficient bond, or execute a new bond in conformity to the statute where the justice of the peace has approved a bond which, in fact, is insufficient or defective.

On the other hand, we submit with equal earnestness that because the statute has liberally extended this privilege it cannot be distorted so as to afford the aggrieved party an opportunity to vacate and supersede forever the adverse judgment appealed from by doing nothing more than furnishing a wholly...