Lott v. Watkins

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Lott v. Watkins, 162 Miss. 507, 137 So. 895 (Miss. 1931)
• Decision Date: 07 December 1931
• Docket Number: 29565
• Parties: LOTT v. WATKINS

137 So. 895

162 Miss. 507

LOTT v. WATKINS

No. 29565

Supreme Court of Mississippi

December 7, 1931

Division B

APPEAL AND ERROR. Defendant not objecting in circuit court to record of proceedings in justice court could not object for first time in supreme court (Code 1930, section 3403).

The record showed an itemized sworn account sworn to before a justice of the peace, a plea of general issue, marked filed by justice of the peace, a judgment by justice of the peace in favor of plaintiff in certain sum, and a certificate by the justice of the peace, followed by appeal bond. This was followed by record of trial in circuit court showing from testimony of witnesses and judgment of the circuit court that it was the same cause as was tried in the justice of the peace court, and there was ample in record in supreme court to furnish fair understanding of proceedings in circuit court.

HON. E M. LANE, Judge.

APPEAL from circuit court of Covington county HON. E. M. LANE Judge.

Action brought in a court of a justice of the peace by Dr. C. L Watkins against Albert Lott. Plaintiff recovered judgment, and on appeal to the circuit court, where there was a trial de novo, plaintiff again recovered judgment, and defendant appeals. Affirmed.

Affirmed.

Rawls & Hathorn, of Columbia, for appellant.

The amount in controversy is one hundred twelve dollars and seventy-nine cents, and of course the circuit court would not have original jurisdiction on open account for this amount, being less than two hundred dollars, but could only have appellate jurisdiction.

Section 490, Code 1930.

The record must show affirmatively that the circuit court had jurisdiction, and the only way this can be shown is by a transcript duly made and certified to and accompanied by an appeal bond duly approved.

Sections 64, 65, 66, Code 1930.

Every justice of the peace shall keep a well bound Look, styled 'a docket' in which he shall enter all the proceedings before him in every case.

It is this record that the justice of the peace is to transmit a copy to the clerk of the circuit court when an appeal is taken from his decision.

Hughston v. Cornish, 59 Miss. 373.

Where a justice of the peace has failed to certify his record the circuit court is without jurisdiction to try the case or render judgment thereon.

Andrews v. Wallace, 72 Miss. 291, 16 So. 204; Gardner v. N. O. & N.E. R. R. Co., 78 Miss. 640, 29 So. 468; Salers v. State, 142 Miss. 88, 107 So. 375; Burrow v. State, 143 Miss. 221, 108 So. 505; Cook v. State, 144 Miss. 519, 110 So. 443; Gordon v. Sykes, 155 Miss. 705, 125 So. 85; Xydias v. Pelman, 121 Miss. 400, 83 So. 20.

H. M. McIntosh, of Collins, and Geo. R. Nobles, of Jackson, for appellee.

The proceedings in justice court were sufficiently certified to the circuit court.

Coleman v. Gordon, 16 So. 340; Boyd v. Quinn, 22 So. 802.

It has been strongly intimated that the only papers necessary to forward the circuit clerk are the bond and judgment.

Gardner v. N. O. & N.E. R. R. Co., 29 So. 469; Ball, Brown & Co. v. Sledge, 35 So. 214; Cook v. State, 110 So 443.

There was no objection by the appellant, no motion to have the record perfected, so that the circuit court was justified in proceeding to a trial of the cause.

OPINION

Anderson, J.

Appellee brought this action against appellant in the court of a justice of the peace of Covington county, to recover the sum of one hundred twelve dollars and seventy-nine cents, which resulted in a judgment in the amount sued for. From that judgment appellant took an appeal to the circuit court, where there was a trial de novo, and a judgment again rendered in appellee's favor for the amount sued for. From that judgment appellant prosecutes this appeal.

The only ground appellant assigns and argues for reversal of the judgment of the circuit court is that the record in the case fails to show that court had jurisdiction because there was not a sufficient transcript of the record of proceedings before the justice of the peace certified up to the circuit court. The record of the proceedings in the circuit court, certified up to this court, shows the following: An itemized sworn account in favor of appellee, and against appellant in the sum of one hundred twelve dollars and seventy-nine cents, sworn to by appellant before G. F. Eaton, a justice of the peace of Covington county. A plea of the general issue by appellant, marked filed by G. F. Eaton, justice of the peace. A judgment by the justice of the peace in favor of appellee against appellant in the sum of one hundred twelve dollars and seventy-nine cents. Following the judgment, there is a certificate by G. F. Eaton, justice of the peace, in this language: "I certify that the above is a true copy of the record as appears on my docket this 4th day of April, 1930." Then follows an appeal bond by appellant from the judgment of the justice of the peace, dated the 14th day of April, 1930, signed by appellant and two sureties, and marked approved on that date by G. F. Eaton, justice of the peace. It will be noted that the certificate of the justice of the peace of the proceedings in his court shows the judgment; and following that is the appellee's bond.

There is nothing in the record of the proceedings in the circuit court to show that the appellant objected to the record of the proceedings in the justice of the peace court on the ground that they were not properly certified up to that court.

This court, as appellant contends, has held in numerous cases that where a justice of the peace has...