McDugle v. Filmer

• Decision Date: 08 April 1901
• Citation: 29 So. 996,79 Miss. 53
• Court: Mississippi Supreme Court
• Parties: JAMES R. MCDUGLE v. JOHN D. FILMER

29 So. 996

79 Miss. 53

JAMES R. MCDUGLE v. JOHN D. FILMER

Supreme Court of Mississippi

April 8, 1901

March 1901

FROM the circuit court of DeSoto county. HON. Z. M. STEPHENS Judge.

Filmer the appellee, was plaintiff, and McDugle, appellant, was defendant in the court below.

The facts are stated in the opinion of the court.

Reversed and Remanded.

R. L. Dabney, for appellant.

The fact that the justice who issued the summons had attempted to execute it, gave the justice's court no more jurisdiction of the defendant than would a verbal message to come to court (Arnold v. Wynn, 26 Miss. 338), and the judgment rendered under these circumstances might have been' attacked collaterally. Hence when it was brought to the attention of the circuit court, that a judgment had been rendered by a justice's court, which had not acquired jurisdiction of the person of the defendant, the proper thing for the circuit court to have done would have been to reverse, which it did in this case, and then enter up such judgment as the justice ought to have entered, i. e., to have refused to adjudicate a cause in which the defendant was not before the court, either by actual or constructive service of process or by appearance.

This court has never held that a trial on the merits should be permitted in the circuit court, upon certiorari, to procure the review by the circuit court of a void judgment of a justice of the peace. An appeal from such a judgment does not invest the circuit court with jurisdiction. Dufour v. Chapotel, 75 Miss. 656. The case was before the court on a question of law, viz., whether a justice of the peace could execute original process issued by himself. And when that question was determined in the negative, and the void judgment of the justice was reversed there was nothing further for the court to try. Louisville, etc., R. R. Co. v. McCollister, 66 Miss. 106; Joiner v. Bank, 71 Miss. 382; Kramer v. Holster, 55 Miss. 243.

St. John Waddell, for appellee.

The petition and bond for certiorari is an entry of appearance by the defendant in the case, sufficient to give a circuit court jurisdiction to render whatever proper judgment should be rendered in the cause. It would have been error for the court to have dismissed plaintiff's case. Evans v. Southern Ry. Co., 74 Miss. 230; Tabler v. Bryant, 62 Miss. 350.

Argued orally by R. L. Dabney, for appellant.

OPINION

TERRAL, J.

On the seventeenth day of February, 1900, J. D. Filmer filed for suit before J. P. Buford, justice of the peace of DeSoto county, his claim for $ 200, and a summons was issued by said justice returnable at Lake Cormorant on the twenty-fourth day of February, 1900, and said summons was executed by the justice himself in due time, and, McDugle not appearing as required by said summons, a judgment by default was rendered against him for $ 200. Thereafter an execution issued upon said judgment, and was levied upon the property of McDugle, when, by certiorari, his complaint was brought before the circuit court of DeSoto county. The circuit court of DeSoto county proceeded to try the case de novo and rendered judgment against McDugle for $ 200 and interest thereon, and from that judgment McDugle appeals. The circuit court of DeSoto county had no jurisdiction to try the case, because the only jurisdiction it could have was the jurisdiction of the justice of the peace, Buford, and Buford had no jurisdiction whatever. Jurisdiction is either in regard to the subject-matter of the suit or the person sued. And, whatever may be true as to the jurisdiction of Justice Buford as to the matter in controversy--upon which we pass no opinion--yet undoubtedly he acquired no jurisdiction of the...