Redus v. Gamble

• Decision Date: 20 February 1905
• Citation: 37 So. 1010,85 Miss. 165
• Court: Mississippi Supreme Court
• Parties: JAMES W. REDUS v. ROBERT X. GAMBLE

37 So. 1010

85 Miss. 165

JAMES W. REDUS v. ROBERT X. GAMBLE

Supreme Court of Mississippi

February 20, 1905

FROM the circuit court of Tate county, HON. J. B. BOOTHE, Judge.

Redus the appellant, was plaintiff in the court below; Gamble, the appellee, was defendant there. From a judgment in the circuit court in defendant's favor the plaintiff appealed to the supreme court.

Redus made an affidavit against Gamble, and brought a civil action against him for damages at the same time, under § 1068, Code 1892, for enticing away or knowingly employing his servant or laborer, one Dock Wilkins. He recovered a judgment in the civil case for $ 68.87, and Gamble was convicted and fined in the criminal case, both cases being tried in a justice of the peace's court. Gamble desired to appeal both cases to the circuit court, and the justice of the peace fixed the amount of the bond for both cases at $ 400, and gave Gamble a bond partly filled out, which Gamble had signed after the penalty of the bond had been changed to $ 250, and on the fourth day after the judgment was rendered, carried it to the house of the justice of the peace and left it with the wife of that officer. The justice of the peace received it the morning of the fifth day after the judgment was rendered but, because the penalty had been reduced, refused to approve it, and refused to transmit to the circuit court a certified copy of the proceedings in the case in his court. The appellee then filed a petition in the circuit court in the nature of a certiorari to compel the justice of the peace to send up the papers and bond. The court granted the petition. Redus made a motion in the circuit court to dismiss the petition because, as he set out in his motion, no bond had been given as required by law; the bond made and tendered in the civil case was insufficient; the old bond could not be filed and approved nunc pro tunc; and no bond had been tendered in the civil case. This motion was overruled. The case was docketed and heard de novo, and, after the evidence had been concluded, the court gave a peremptory instruction to find for defendant.

Affirmed.

J. F Dean, for appellant.

To obtain a writ of certiorari four things are essential and must concur: (1) The application must be made within six months after the case is decided. (2) Good cause must be shown by petition. (3) The petition must be supported by affidavit. (4) In all cases bond must be given as in cases of appeal from justices of the peace.

Now in this case no bond was given or required. If the bond could be dispensed with by the judge who granted the writ, then the time could be extended beyond the six months prescribed by the statute, and it has been held repeatedly that this was jurisdictional, and that neither appeals nor writs of certiorari can be issued after the expiration of the time allowed by law.

Good cause shown by petition could be waived and any verbal statement accepted. Oath need not be required, yet in Moore v. Ernst, 54 Miss. 642, the court held that the affidavit was necessary and the writ issued without the affidavit would be dismissed upon motion, but that appearance by the opposite party and entering the trial without an objection would be a waiver of the defect. The same statute which limits the time within which the writ may issue, and that requires the petition to be in writing supported by affidavit, also requires that bond be given. Can there be any reason why all the provisions of a statute should be mandatory except one? If there is any difference in this statute, it is in favor of the mandatory character of the requirement for bond rather than for the other provisions. It says: "In all cases giving bond," etc.

At common law the writ was discretionary, and the bond was not necessary, and was also discretionary with the judge issuing the writ. "But many states (Mississippi amongst the number) have statutes requiring bond to be given, and statutes requiring that bonds shall be given before the writ issues are mandatory, and unless the bond is given in compliance therewith the writ will be quashed," which is the equivalent of dismissed. 4 Ency. Pl. & Pr., 187.

But it may be answered that an appeal bond was given, as shown by exhibit with the petition. An appeal bond is not a certiorari bond, and in this case was only an exhibit and not a bond. Where a writ of error bond has been given instead of a certiorari bond, the writ will be dismissed. 4 Ency. Pl. & Pr., 243.

Besides, this is begging the question. Whether or not an appeal bond had been given was the very question in issue. The only way the court had of determining whether or not the appeal bond had been given was by writ of certiorari. The only way it could grant the writ was on petition showing good cause supported by affidavit after the party praying for the writ had entered into bond as required in appeals from justices of the peace.

Appellant does not pretend to say that the circuit court has not the power to declare the bond tendered to the justice good, sufficient, and valid where the proof shows it to be so. What he contends is that the circuit judge has no right to review the proceedings of the justice of the peace at all until the petitioner has filed his bond as required by the statute. Appellant does not take issue with Robinson v. Mhoon, 68 Miss. 712. The facts in that case and this are not the same, and there is nothing to show that the petitioner in that case did not give a bond for certiorari. It is presumed that he did, as that question was not raised.

N. A. Taylor, for appellee.

Certiorari is the proper proceeding to require the sending up the case to the circuit court by the justice of the peace. "Where the appellant filed his appeal bond within proper time, he cannot be bound by the failure of the justice of the peace to transmit the paper to the county court; but if the papers and transcript be not filed before the first day after the second term after the appeal is perfected, it is the duty of appellants to apply for a writ of certiorari to compel the justice to perform his duty. Jones v. Spann, 3 Civ. Cas. (Tex.) Ct. App., sec. 283.

"A party ready and willing to comply with the prerequisites to an appeal cannot be deprived of his...