Nations v. Lovejoy

• Decision Date: 21 April 1902
• Citation: 31 So. 811,80 Miss. 401
• Court: Mississippi Supreme Court
• Parties: SAMUEL C. NATIONS v. MARIAH A. LOVEJOY

31 So. 811

80 Miss. 401

SAMUEL C. NATIONS v. MARIAH A. LOVEJOY

Supreme Court of Mississippi

April 21, 1902

FROM the circuit court, first district, Yalobushacounty. HON PERRIN H. LOWREY, Judge.

Mrs Lovejoy, appellee, was plaintiff, and Nations, appellant defendant in the court below. The plaintiff recovered a judgment for $ 75 and costs, from which the defendant appealed to the supreme court. The facts are stated in the opinion of the court. For a previous report of the case see Nations v. Lovejoy, 77 Miss. 36.

Judgment reversed and case remanded.

Frank Johnston and Earl Brewer, for appellant.

This case was taken by appeal originally to the circuit court of the second judicial district of Yalobusha county. The condition of the appeal bond was that the appellant should prosecute the appeal with effect, or pay and satisfy any judgment that should be rendered by the circuit court for the second judicial district of Yalobusha county. On the former appeal to the supreme court it was held that the circuit court for the second judicial district had no jurisdiction of the appeal, upon the ground that the defendant resided in the first judicial district of the county, and the case was remanded with directions to the circuit court to dismiss the appeal. The case was accordingly dismissed by the circuit court for the second district of the county at the December term, 1899. The plaintiff then withdrew the papers from the circuit court for the second judicial district and placed them in the circuit court for the first judicial district though they do not appear to have been marked filed by the clerk of that court. The circuit court for the first district had no jurisdiction of the case. It could not have acquired the jurisdiction by the transfer, or removal of the case from the circuit court for the second district. That court did not attempt to transfer the case, and if it had done so there is no statute to authorize such a proceeding. When that court dismissed the cases its authority was ended ipso facto. It had no jurisdiction, and the only order that it could make was one dismissing the cases with costs.

The bond in no possible view of the case could sustain an appeal to the circuit court for the first judicial district. The condition of the bond was to satisfy the judgment of the circuit court for the second judicial district of the county, and that court has rendered judgment dismissing the case. It is precisely the same as if the appeal had been taken to the circuit court of another county. This court said in its opinion, on the former appeal, that the jurisdiction of the circuit courts in the two districts of the county is just as distinct as if the districts were two counties. The appeal bond executed at the November term, 1900, of the circuit court for the first judicial district was a new bond in every respect, and was given long after the period allowed for appeals had expired. The cases stood in that court as if no appeal bond had been given; and the court could not possibly get jurisdiction by allowing an appeal bond to be executed at that time. In this class of appeals the bonds are to be given in the justice court and are to be approved by the justice of the peace, and there can be no appeal without a bond. This court has expressly held that the time prescribed for the appeal is a limitation on the jurisdiction of the circuit court in appeals from courts of justices of the peace. Kramer v. Holster, 55 Miss. 243.

The plaintiff was not entitled to double damages. Sec. 1068 of the code of 1892, which allowed the recovery of double damages, was repealed by the act of March 12, 1900. Laws 1900, 140.

I. T. Blount, for appellee.

Plaintiff in the justice court was entitled to an appeal. This is a constitutional right. Sec. 171, Constitution 1890. Code 1892 § 82. The appeal was prayed and bond given within the statutory period. No injustice was done defendants. It will be depriving plaintiff of a substantial, constitutional right to hold that upon this mere technicality she shall be denied a hearing, or, rather, robbed of a twice-earned victory before a jury. There is nothing in the contention that the original appeal bond was condition to abide "the judgment of the second circuit court district of Yalobusha county." This is mere verbiage. Would it have been contended that appeal would have been lost on this bond by appellants if by mistake the justice of the peace had sent these papers to the circuit court. of Lafayette county? Plaintiff did all she could do to file her appeal bond within the prescribed time. From that time on she had no control of the record, until a court of competent jurisdiction had decided the question and directed to which court the appeal should be taken. This court will observe that for more than thirty years these courts, first and second districts of Yalobusha county, have been created and this is the first time the question has been...