State v. Carraway
| Decision Date | 25 May 1931 |
| Docket Number | 29500 |
| Citation | 134 So. 846,160 Miss. 263 |
| Court | Mississippi Supreme Court |
| Parties | STATE v. CARRAWAY |
1. EMINENT DOMAIN. Trial on appeal from county court to circuit court in condemnation proceedings is not de novo, but on record and assignments of error (Code 1930, sections 704, 1497).
An an appeal from the county court to the circuit court in an eminent domain proceeding, the trial is not de novo in the circuit court, but is upon record and assignments of error.
2. APPEAL AND ERROR. Points not raised by assignments of error in circuit court, other than as to jurisdiction, cannot be raised in Supreme Court on appeal (Code 1930, section 704).
Points not raised by assignments of error in the circuit court other than as to jurisdiction cannot be raised on appeal from the circuit court to this court.
APPEAL from circuit court of Newton county, HON. D. M. ANDERSON Judge.
Condemnation proceedings by the state, on behalf of the state highway commission, against Dr. W. C. Carraway. From an adverse judgment, the state appeals. Affirmed.
Affirmed.
E. R. Holmes, Assistant Attorney-General, for the state.
The lower court by reason of its failure to administer to the jury the special oath required by section 1489, Mississippi Code of 1930, erred.
Chapter 26, of the Code of 1930, sets out all the law of the State of Mississippi with regard to eminent domain. An eminent domain proceeding is a special and summary proceeding which is entirely governed by the statute creating a special court of eminent domain. Such statute must be strictly construed and closely followed.
It is our contention that section 1497, Code of 1930, dealing with appeals from an eminent domain court and providing that "upon appeals, the issues shall be tried de novo in the circuit court, which shall try and dispose of it as other issues, and enter all proper judgments," is controlling here for the reason that the county court statute, although giving the county court exclusive jurisdiction of eminent domain, makes no provisions of any kind for procedure in cases of this kind.
It is undoubtedly true that all actions begun in the county court are, on appeal to the circuit court, to be tried on the record, but we maintain that in this particular instance where the court is dealing with the property rights of a party, the statute which declares the procedure to be followed in the particular instance should govern rather than the general statute which applies to all cases generally.
The entire Mississippi Code of 1930 must be read together and construed as a whole, and in reading it together, an attempt must be made to give each section some meaning. It appears, therefore, that in this particular instance the legislature said in effect that all appeals from the county court are to be tried in the circuit court on the record, but in eminent domain proceedings where the county judge is presiding over special court of eminent domain, the parties are entitled to a trial de novo in the circuit court, because of the peculiar summary nature of the suit.
J. D. Carr, of Newton, for appellee.
Appellant's first assignment of errors is without merit, for the reason that he is complaining about the action of the county court and he failed to assign it as error to the circuit court; and for the further reason that the action of the county court in using the panel of the week, from which the jury was selected, and which was accepted by appellant, was proper and legal, as provided by chapter 17, Code of 1930.
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