Lucedale Commercial Co. v. Strength
| Decision Date | 16 May 1932 |
| Docket Number | 30015 |
| Citation | 141 So. 769,163 Miss. 346 |
| Court | Mississippi Supreme Court |
| Parties | LUCEDALE COMMERCIAL CO. v. STRENGTH |
1. JUSTICES OF THE PEACE. On appeal from justice court, circuit court's jurisdiction is original, and case is tried de novo, though no written pleadings are required (Code 1930 sections 64, 67).
Circuit court in such cases has no authority merely to review and affirm or reverse judgment of justice of peace, but case must be tried anew as if it were originally instituted in circuit court, with single exception that written pleadings are not required, and jurisdiction to consider such cases de novo on appeal and decide them according to law and evidence independent of rulings and judgment of lower court, Is original and not appellate.
2. JUSTICES OF THE PEACE.
I Justice court's judgment is vacated or superseded by appeal to circuit court, although revived by dismissal of appeal (Code 1930, sections 64, 67).
3. JUSTICES OF THE PEACE. On appeal from justice court to circuit court, plaintiff could suffer voluntary nonsuit without thereby reinstating justice court's judgment so as to render it res judicata (Code 1930, sections 64, 67, 594).
Cause being in circuit court for trial anew, as though originally brought in that court, plaintiff-appellant was entitled to avail itself of right granted to every plaintiff by Code 1930, section 594, to suffer nonsuit of cause, and by so doing cause was taken out of court and judgment of justice court vacated; and hence judgment of justice court in such case was not res judicata of controversy and did not bar a future action.
APPEAL from circuit court of George county, HON. W. A. WHITE, Judge.
Suit by Lucedale Commercial Company against J. F. Strength. From a judgment overruling a demurrer to defendant's special plea of res judicata and dismissing the cause, plaintiff appeals. Judgment reversed, demurrer to the special plea sustained, and cause remanded.
Reversed and remanded.
O. F. Moss, of Lucedale, for appellant.
Plaintiff may suffer a non-suit at any time before the jury retires.
Sections 594, 595, Code of 1930; Adams v. Lucedale Commercial Company, 112 Miss. 607, 74 So. 435; Payne v. Stevens, 88 So. 165; Railroad Company v. Williams, 109 Miss. 429, 69 So. 215.
An appeal may be taken from the justice court to the circuit court and the appeal, when demanded and bond given, operate as a supersedeas of execution on such judgment.
On appeals from the justice of the peace to the circuit court the case shall be tried anew, in a summary way, without pleadings in writing.
In case of certiorari the circuit court reviews only the record and proceedings had in the justice of the peace court, while on appeal under section 64 and section 67 the case is tried anew, a new record is made, just as if the case had never been tried before.
Telephone Company v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newell, 61 Miss. 437; Railroad Company v. Andrews, 61 Miss. 474.
De novo means anew; fresh; in the same manner; with the same effect; a second time.
18. C. J. 486.
Filing a bond in accordance with the statute within the time with a justice of the peace operates to remove a civil case to the circuit court.
Redus v. Gamble, 85 Miss. 165, 37 So. 1010.
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 has its foundation in the judgment.
Land Company v. Robertson, 125 Miss. 338, 87 So. 669.
And where the plaintiff appeals to the circuit court from a justice's court, and then exercises his right to dismiss the cause or take a non-suit, the case is taken out of court and the judgment of the justice is thereby vacated.
Leonard v. Security Bldg. Co., 162 S.W. 685, 179 Mo.App. 480, 14 Dec. Dig., 367.
Plaintiff may take a non-suit at any time before trial when his case stands for trial de novo, even upon a reversal and remand for a new trial.
A judgment by a justice's court is vacated by an appeal to the circuit court, subject only to revival by a dismissal of the appeal.
Mayott v. Knott, 92 P. 240, 16 Wyo. 108.
There is a vast difference between the dismissing of an appeal from a justice court and a dismissal of the action itself.
Eckard v. Superior Court, 234 P. 80, 195 Cal. 473; Hartsock v. Insurance Company, 223 Ill.App. 433.
A plaintiff may, upon trial, submit to a non-suit or voluntary discontinuance before trial in suit brought into the circuit court by appeal from a justice.
Castator v. Royes & Blandford, 192 N.W. 696, 221 Mich. 591; Garfield v. Steel Corp., 194 N.W. 526, 223 Mich. 694.
Appellant claims that there is now a judgment of the justice of the peace court against them on the merits, and also a judgment of dismissal of the circuit court, and that, under section 2400, Hemingway's 1927 Code, the judgment of the justice of the peace court could now be pleaded as res adjudicata. This would be true but for the appeal to the circuit court. The case on appeal to the circuit court stood as if it had never been tried before. It was to be tried anew.
Parker v. Smith, 150 Miss. 849, 117 So. 249.
In most jurisdictions, on appeals from justice of the peace courts to the circuit court for trial de novo, such appeals vacate the justice judgment.
A plaintiff may dismiss his action or take a non-suit as well after as before an appeal, even though judgment was recovered against him, and the dismissal of the action may be in whole or in part.
35 C. J., 811, Sec. 524; Slaughter v. Martin, 9 Ala. 285, 289, 63 So. 689.
T. H. Byrd, of Lucedale, for appellee.
It is a general rule that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. And the rule applies to appeals from the justice's court.
3 C. J. 366; Wallace v. Degree, 38 D. C. 145; Felt v. Felt, 19 Wis. 193; Tomlin v. Harper, 6 Ga.App. 808, 65 S.E. 1093.
An appeal from the justice court as provided by the Constitution, the filing of the bond and appeal operates only as a supersedeas of execution on the judgment rendered in the justice court. It does not vacate or destroy the solemnity, force and effect of a final judgment rendered in the justice of the peace court.
Section 171, Constitution of 1890; Section 64, Code of 1930.
Appeals from the justice of the peace are to be tried anew, as if never tried before.
Amory Tel. Co. v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newall, 61 Miss. 437; Ill. Cent. R. Co. v. Andrews, 61 Miss. 474.
On a trial de novo the judgment of the justice is not reviewed and reversed or affirmed, but a new, distinct, and independent judgment, as may be required by the merits shown on trial, is rendered by the appellate court. The jurisdiction acquired by the court is, however, appellate, and it cannot render any judgment on appeal which the justice could not have rendered.
35 C. J., pp. 845-846; Stier v. Surget, 18 Miss. 154.
Dismissal deprives appellant of right to trial de novo.
The final and effectual dismissal of an appeal deprives the appellate court of all further jurisdiction of the cause, and the justice's judgment has the same force and effect as if no appeal had been taken.
Woods v. Speer, 127 Miss. 593, 90 So. 322; Bank of Commerce v. Franklin, 88 Ill.App. 198; Mann v. Barkley, 21 Ind.App. 152, 51 N.E. 946; Kansas City R. Co. v. Hammond, 25 Kan. 208; Olmstead v. Mason, 3 Bush, 693; Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1095.
The condition to prosecute the appeal with effect is broken where the appeal is dismissed for failure to perfect or duly prosecute it, even when the dismissal is on appellee's motion, and such condition is also broken by voluntary dismissal of the appeal.
35 C. J., pages 889-890; Pass v. Payne, 63 Miss. 239.
On the dismissal of an appeal the cause stands in the trial court as if no appeal had ever been taken.
The fact that cases are tried de novo on appeal from the county court to the district court does not render the voluntary dismissal of an appeal by plaintiff from a judgment in his favor an anullment of the judgment.
Pueblo, etc., Lumber Co. v. Danziger, 7 Colo.App. 149, 42 P. 683.
It has been held that, in the absence of special equitable considerations, appellant is not entitled to a dismissal without prejudice.
The general rule is that after a final judgment it is too late to dismiss or take a non-suit.
18 C. J. 1153; Denver, etc., R. Co. v. Paonia Ditch. Co., 49 Colo. 281.
A justice's judgment from which plaintiff has appealed to the circuit court, wherein he has taken a voluntary nonsuit, is res judicata in a subsequent suit on the same cause of action, the appeal not vacating the judgment of the justice, but merely suspending its enforcement.
M. M. Cahn Co. v. Hutt, 136 Ark. 185, 206 S.W. 130; Matter of Moran, 59 Misc. 133, 134, 112 N.Y.S. 207.
A judgment on the merits rendered by an inferior court, such as that of the justice of the peace, is a bar to another suit between the same parties on the same cause of action, either in another court of the same grade or rank or in any other court, unless the court rendering such judgment was without jurisdiction of the action.
34 C. J. 1169, 1282, 1283, 1284, 1285; Southern Pac. R. Co. v. U.S. 168 U.S. 1-48; Wilson v. Lacriox, 111 Me. 324-329; Hart Stell Co. v. Railroad Supply, etc., Co., 244 U.S. 294; Great Northern R. Co. v. Mossop, 17 C. B. 130-140, 84 E. C. L. 130.
The general rule is that the effect of a...
To continue reading
Request your trial
-
Keys v. Borden
... ... Abraham ... v. Alford, 64 Ala. 281; Horsh v. Heflin, 76 Ala ... 499; Lucedale Commercial Co. v. Strength, 163 Miss. 646, 141 ... We ... submit that a judgment or ... ...
- Barron v. City of McComb
-
Jackson v. State
...Co., 210 Miss. 354, 49 So.2d 689 (1951) (appeals from judgments of justices of the peace are to be tried anew); Lucedale Comm. Co. v. Strength, 163 Miss. 346, 141 So. 769 (1932) (on appeal from justice court, circuit court's jurisdiction is original, and is tried de The more recent case of ......
-
Dancy v. State
...¶ 25. "A judgment by a justice of the peace is vacated or superseded by appeal to the circuit court ...." Lucedale Commercial Co. v. Strength , 163 Miss. 346, 141 So. 769, 770 (1932). When Dancy appealed the judgment of the justice court to the circuit court, he was entitled to a trial de n......