Mississippi State Highway Department v. Haines

Decision Date18 January 1932
Docket Number29719
CourtMississippi Supreme Court
PartiesMISSISSIPPI STATE HIGHWAY DEPARTMENT v. HAINES et al

Division B

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Condemnation proceeding by the Mississippi State Highway Department against John. Haines and others. Defendants recovered judgment in the county court, and, from a judgment of the circuit court dismissing plaintiff's appeal, plaintiff appeals. Reversed and dismissed.

Reversed and dismissed.

Goode Montgomery, of Laurel, and E. R. Holmes Jr., of Jackson, for appellant.

The judgment in this case was either the judgment of the county court, which is provided for under chapter 17 of the Mississippi Code of 1930, or it is the judgment of a special court of eminent domain, as provided for by chapter 26 of said code.

If this code holds that the law as outlined in said chapter 26 controls the procedure, then the right of appeal provided in section 1497 would likewise control. This section gives twenty days from the day of trial for the filing of petition for appeal. So it appears under this line of procedure that the circuit court was in error in holding that the time for appeal had expired when the same was filed with the clerk.

Since the whole record is before the court, we submit that the record shows that the case was returnable, was tried and the verdict rendered at a time when there was no term of the county court in the First district of Jones county, Mississippi, so that the circuit court should have dismissed the whole proceeding, because it was void.

The county court (not the county judge) is given exclusive jurisdiction of matters and causes of eminent domain.

Sec. 693, Miss. Code of 1930.

The county court is a statutory court, with its terms, jurisdiction and powers fixed by statute. Its terms are fixed by section 702 of Mississippi Code of 1930, which, taken with chapter 169, Laws of 1906, shows that no regular term of court could be held in Ellisville in the First district of Jones county, in the month of April. Authority given to the county judge to call special terms was not exercised. So we submit that the record shows that no county court was held at this time.

Arbour v. Y. & M. V. R. R. Co., 54 So. 158, 96 Miss. 340; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; Union Motor Co. v. Cartledge, 133 Miss. 318, 97 So. 801.

The statute gives to the county judge no authority to try cases in vacation and his attempted holding of the court in vacation and the trial of any case therein is a nullity, and any judgment rendered therein is void.

Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582; Cumberland Telephone Company v. Morgan, 45 So. 429, 92 Miss. 478; 12 Ency. P. and P. 188.

F. B. Collins, of Laurel, for appellees.

Before a later statute has the effect of repealing a former statute it must clearly appear that it was the intention of the legislature to repeal such statute. Repeals of statutes by implication are not favored by law.

Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Darnell v. Johnson, 109 Miss. 570, 68 So. 780; Ascher v. Moyse, 101 Miss. 36, 57 So. 299; Gilmore Puckett Grocery Company v. J. Lindsey Wells Company, 103 Miss. 468, 60 So. 580.

It is our contention that a special court of eminent domain as created by chapter 26, Mississippi Code 1930, has not been entirely abolished but only that part of it that confers the jurisdiction upon the justice of the peace has been abolished and exclusive jurisdiction is conferred upon the county court, but the method of procedure has not been repealed.

Sec. 696, Miss. Code 1930.

It is clear enough from the provisions of the statute that it was not the intention of the legislature, in enacting the county court law to abolish the method of procedure in the organization and the proceedings in eminent domain cases; but on the other hand, it is clear that it was the intention of the legislature to preserve the method of procedure in eminent domain cases as provided by chapter 26, Mississippi Code 1930.

The county court shall have exclusively the jurisdiction heretofore exercised by justices of the peace, in the following matters and causes, viz; eminent domain, the partition of personal property, and in actions of unlawful entry and detainer.

Sec. 693, Miss. Code 1930.

The statute above quoted invests the county court with exclusive jurisdiction over subject matter in eminent domain proceedings, and it is our contention that if the parties consent or submit themselves to the jurisdiction of the court, then the court has full jurisdiction to determine the matter and the judgment rendered is valid.

11 Cyc. 676.

When the appellant, plaintiff in the court below, filed its petition in the county court and thereby sought relief by consenting to the jurisdiction over the person of the appellant, plaintiff in the court below, it thereby consented to the jurisdiction, and is estopped to question it.

Appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, provided, however, that the county judge may within the said ten days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty days from the date of the said final judgment.

Sec. 704, Miss. Code 1930.

OPINION

Anderson, J.

Appellant, Mississippi State Highway Department, brought an eminent domain proceeding in the first district of Jones county, against appellees John Haines and Cola Haines, owners of the land sought to be condemned, and the Federal Land Bank of New Orleans, the mortgagee of said land, to condemn a right of way for the construction of highway No. 11 between the cities of Laurel and Hattiesburg. The proceeding was brought under chapter 26 of the Code of 1930 (the chapter on eminent domain) and the trial was had, in all substantial respects, as prescribed in that chapter; except the court of eminent domain consisted of the county judge and a jury, instead of a justice of the peace and a jury, and the evidence was taken down by the court stenographer of the county court. There was a verdict and judgment in favor of appellees, in the sum of one thousand five hundred dollars, from which judgment appellant appealed to the circuit court of Jones county, where on motion of appellees the appeal was dismissed. From that judgment of the circuit court appellant prosecutes this appeal.

The questions in the case arise out of the construction to be placed upon certain provisions of chapter 26 of the Code of 1930 (eminent domain chapter) and chapter 17 of the Code of 1930 (the county court chapter). Differently stated, the questions to be decided grow out of the further question as to what extent the county court chapter repealed or modified the provisions of the eminent domain chapter.

The proceeding in this case was instituted and conducted in all substantial respects as required by the eminent domain chapter, except the county judge acted in place of a justice of the peace, and the evidence on the trial was taken down by the county court stenographer. The trial was had, not at a regular or special term of the county court of the First district of Jones county, but during the vacation of that court. It was simply an eminent domain court, organized by the county judge in the manner prescribed by the chapter on eminent domain for the organization of such a court by a justice of the peace. The trial resulted in a verdict and judgment in favor of appellees in the sum of one thousand five hundred dollars, from which judgment appellant undertook to prosecute an appeal to the circuit court in the following manner: The appellant filed a petition for an appeal with the county judge (no appeal bond being required by law). The petition for appeal was filed after the expiration of ten days from the entry of the judgment, but within twenty days from its entry. No notice was given the county court stenographer to transcribe his notes of the evidence and the rulings of the court. In the circuit court the appellees made a motion to dismiss the appeal upon the grounds that appellant failed to give the court stenographer notice to transcribe his notes, and that the appeal had been taken after ten days from the entry of the judgment. The circuit court sustained the motion and dismissed the appeal.

The last clause of section 693 of the county court chapter provides that it "shall have exclusively the jurisdiction heretofore exercised by justices of the peace, in the following matters and causes, viz: eminent domain, the partition of personal property, and in actions of unlawful entry and detainer."

Section 696 of the county court chapter provides as follows:

"The rule of pleading, practice, and procedure in the said county court shall be the same as those now, or which may hereafter be established as governing the several other courts, as respects the several matters mentioned; that is to say, in proceedings which, if there were no county court would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed as if the matter were in said justice court, general or special; and if the matter be such as would be in the circuit court, the practice shall be the same as in the circuit court and if the matter would be in the chancery court, the practice shall be the same as that of the chancery court; and this shall furnish and be the rule for all proceedings in the said county court in all matters over which it has jurisdiction: Provided, however, that all pleadings in the county court shall be in writing,...

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