Simpson v. Boykin

• Decision Date: 25 November 1918
• Docket Number: 20373
• Court: Mississippi Supreme Court
• Parties: SIMPSON v. BOYKIN

79 So. 852

118 Miss. 701

SIMPSON v. BOYKIN

No. 20373

Supreme Court of Mississippi

November 25, 1918

Division B

APPEAL from the circuit court of Quitman county, HON. W. A. ALCORN JR., Judge.

Action by W. R. Boykin against T. C. Simpson. Judgment for plaintiff in justice court. From an order of the circuit court dismissing the appeal, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Denton & Boone, for appellant.

I agree with counsel that the first question is whether the defendant is allowed five days or ten days within which to perfect his appeal; but, in order to decide this question, it is necessary to determine, first, whether the justice of the peace had any jurisdiction to try the issues which the record shows were involved in the case before him; and, second whether the appeal was perfected within five days, conceding that the justice of the peace did have jurisdiction, and also conceding that section 2895, Code of 1906, applies.

Counsel for appellee has not yet disagreed with me on the proposition that if the justice of the peace had no jurisdiction, then the general statute allowing ten days for appeals would apply as in any case where there was no jurisdiction, and I do not think there can be any difference of opinion on this point.

A magistrate simply cannot try a suit in ejectment or an unlawful entry and detainer case single handed. In some of the reported cases cited in the texts which we have referred to as authorities on this point, it was vigorously contended that the mere filing of a counter-affidavit, such as the one filed by appellant in this case, denying the title of the plaintiff was sufficient of itself alone to divest the magistrate of jurisdiction; but we must confess that those cases which are accessible to us seem to be against us on this point. 17 Ency. of Procedure, page 955; 18 Standard Ency. of Procedure, page 571. It is clear, however, from these authorities that where the counter-affidavit and the evidence both show that serious questions of title or other substantial rights are in dispute, then a justice of the peace has no jurisdiction. In this connection, we again call attention to the fact that appellee had no title whatever to the lands involved in controversy for the year 1918, which is in dispute.

Proceeding to the next question however, we say that even if the justice of the peace had jurisdiction and conceding that the five-day statute applies, even then the appeal was taken in time because it was perfected on January 17th, within five days of the time after the judgment became "final" through its entry and signature on January 14th.

Counsel quotes that part of section 82 which provides that appeals may be taken "within five days after the rendition of the judgment." We wish also to quote and emphasize that part of this statute which provides that the judgment appealed from must be a "final judgment." Counsel seems to contend that the whole solution of the question as to whether the judgment in this case was a "final" judgment after the mere oral opinion of the justice of the peace on January 11th may be arrived at simply by reaching a correct definition of "rendition of judgment." and he understands us to admit that "ordinarily 'rendering' of judgment is the announcement by the court or judge of the decision." We certainly do not make any such admission. A judgment is a "solemn record." Fayerweather v. Ritch, 195 U.S. 276 49 L. Ed., 193. It is not to be confused with a mere opinion or decision orally announced from the bench. As stated in our former brief, it is true that some text-writers and some courts have in some cases used expressions which seem to be against us, but by reference to these cases cited under these texts and by reference to the facts in every case where such expressions occur in the opinion of various courts, including all that are cited in appellee's brief, will show that in every case the judgments referred to were evidenced by some record written upon the minutes, or elsewhere. We refer especially to 2 R. C. L., page 106, section 82, which is quoted by appellees. The first reading of this text indicates that a judgment is "rendered" when it is "pronounced by the court," but a careful reading of this definition and the cases which are cited in the notes will show clearly that the writer did not mean to say and had no authority whatever for saying that a mere oral pronouncement is a final judgment. The first case cited is Chandler v. Washoe Ditch Co., 28 Neb. 151, 80 P. 751; 6th Ann. Cas., page 946. In that case, the court says: "Final judgment in this was pronounced by the court on June 29, 1903, and entered by the clerk in said cause on July 7th, following. This appeal was taken on September 19, 1904. The appeal from the judgment, not having been taken within one year from the time it was rendered by the trial court, is dismissed." of course the case was dismissed when the appeal was taken more than a year after the judgment was actually entered. The use of the word "pronounced" by the text writer, instead of "rendered" arises probably because the two words were confused by the reporter in the syllabus and in the digest. The court certainly did not mean to say that the mere oral announcement of the finding of the court below was sufficient to set in motion the statute limiting the time for appeals. The other case cited under this text is Simmons v. Hanne, 50 Fla. 267, 39 So. 77; 7th Ann. Cas. 322. In this case, the judgment was written out and signed by the trial court and the only question was whether its true date was the date of its signature or the date of its entry by the clerk. Reading the text referred to further, however, we find that even where the judge writes down and signs a judgment, it will not be considered as rendered until he files it with the clerk and it is the date of the filing and not the date of the signature which will limit the time for taking appeals. We call especial attention to the case cited in the note. Peterson v. Nash, 112 F. 311, 55 L. R. A. 344, which is exactly in point.

An examination of all of the authorities which are cited by appellee will show that in every one of them there was some written entry or memorandum of the judgment made and the text-writer and judge did not in any of them have in mind a case where there was a mere oral announcement of opinion as in the case at bar.

The case of The Estate of Cook (Cal.), 11 Am. State Rep. 267, which is cited by counsel, is a case in which the validity of a divorce was called in question and the court frankly says: "If, therefore, the question here presented were a doubtful one, the leaning of the court should be in favor of the validity of the second marriage and against the implication of bigamy." The case was fairly decided, however, and the facts show that the decree of divorce was duly granted by the court and entered in the "minutes," but that it was not entered for a long time afterwards on the "judgment roll." The court simply holds that the entry on the minutes was sufficient to constitute a valid "rendition" of the decree of divorce, and that failure to enter it on the "judgment roll" as seems to be required by the statutes of California, does not constitute a fatal objection.

The case of Estate of Newman, 75 California, 213, 75 Am. St. Rep. 146, referred to on page 271 of the Cook case, and quoted by appellee, was a case in which the decree had been signed by the judge but was not filed with the clerk for entry on the "judgment roll" until some time later, and the question under consideration was whether the decree should be considered as "rendered" when it was written and signed, or when it was filed. From reading these California cases, it appears that the procedure there is different from ours, and that judgments, when first written, and signed, are entered on the minutes, but that they must be later filed with another clerk and entered on his "judgment roll" before execution can be issued. Bearing this in mind, it is easy to see why the courts of that state drew distinctions between the dates of "rendition" of judgments by entering them on the minutes and the dates of their "entry" by placing them on the "judgment roll." The courts of that state, however, do not hold that the mere oral announcement of a decision or opinion of the court constitutes a judgment which will set in motion the statute limiting the time for appeals. They expressedly hold the contrary in the case of Woods v. Etiwanda Water Co., 122 Cal. 152, 54 P. 726 which has already been cited. The case of State v. Henderson, 164 Mo. 347, 64 S.W. 138, 86 Am. St. Rep. 618, is also a case where a full written memorandum of the judgment complained of was signed by the judges and given to the clerk, though it was not actually entered until some time afterwards.

We have no quarrel whatever with these cases. They have no application to the present question, although the language used, especially in the digests of them, seems at first to be against us. The syllabii contained in 7th Words and Phrases referred to by counsel, are in the same attitude. All of the cases there referred to are not accessible to us, and doubtless they have not all been obtained and read by counsel for appellee; but, in view of the overwhelming authorities to the contrary, we feel safe in challenging him to point out a single one of them which holds that the mere oral announcement of the finding of any court is sufficient to limit the statutory right of appeal. The cases of Clark v. Duke, 59 Miss. 575, and Herror v. Walker, 69 Miss. 707, do not involve the point. Of course, it is the rendering of a final judgment by the court which gives it vitality and not the...