Town v. Lupkin & Son

• Citation: 114 Miss. 693,75 So. 546
• Decision Date: 04 June 1917
• Docket Number: 19311
• Parties: TOWN v. LUPKIN & SON
• Court: United States State Supreme Court of Mississippi

75 So. 546

114 Miss. 693

TOWN v. LUPKIN & SON

No. 19311

Supreme Court of Mississippi

June 4, 1917

Division A

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

Suit by Mrs. Nellie Town against H. Lupkin & Son, brought in a justice court and appealed to the circuit court. From a judgment in the circuit court dismissing the case, plaintiff appeals.

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

Judgment reversed and case remanded.

Maynard & Fitz-Gerald, for appellant.

Appellees contend in their brief that this case should be affirmed because the ruling of the lower court was correct in sustaining the motion to dismiss, and the reasons given are as follows: First: That the writing sued on was insufficient on which to base a cause of action. Second: That the failure to allow the amendment, even though it should have been allowed, is not a reversible error.

Counsel for appellees argue that there is no evidence that the writing sued on was ever filed in the justice court. This is indeed, a remarkable assertion when the proof shows that the justice of the peace forwarded the original of the lease contract with the usual certificate that the papers attached constituted the entire record, etc.

It is contended by appellees that the record nowhere shows that the contract was filed with the justice of the peace. It seems that appellees are of the opinion that before a paper can be filed that same must have been marked "filed." This is not the law, and with respect to cases of this character the paper sued on doesn't have to be marked "filed;" but according to section 2730 of the Code of 1906, which is set out in full in our main brief, the statute only requires that the paper be lodged with the justice of the peace.

Every justice of the peace is presumed to have done those things which he should have done. Officers are presumed to have done their duty until the contrary is properly shown. Law suits in the supreme court are tried on their records, and the records are presumed to be correct. The record in this case shows beyond per-adventure of a doubt that the paper sued on was lodged with the justice of the peace, and that it was sent to the attorneys for appellant to be by them turned over to the circuit clerk; but that attorneys for appellant, with the consent of Salter & Longino, the then attorneys for appellees, took from the record, so as to preserve the same, the original lease and substituted therefor a true and correct copy. So the record showing that the papers were in the custody of the justice of the peace, this court can only indulge in the presumption that the record being silent as to how the papers came into the justice of the peace's hands, they were properly lodged with him.

We contend that no filing marks were necessary, even though the statute had used the word "filed" instead of "lodged."

Granting for the sake of argument that this court should determine that the words "lodge" and "file" are synonymous, still the law has been complied with, for we find the law to be as follows: "But the filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon, and does not consist of the marking put on it by the clerk." 19 Cyc., p. 530, and note No. 55 therein.

The supreme court of Florida in the case of Franklin Co. v. State ex rel. Patton, in the third southern, page 471, says: "A paper is filed when it is delivered to the proper officer, and received by him to be kept in his official custody. The usual file marks are but one evidence of the filing."

We shall not burden the court further with authorities along this line, though they exist in great abundance.

The case of the United States Fidelity & Guaranty Company v. Leed Company, 73 S.W. 364, cited by appellees is not in point, as it went off on the proposition that in order to carry out the presumption of law, that those things were done by the court which should have been done. The case had to be decided as it was; in other words, the court held that the paper in question must never have been filed for if it were, the lower court had committed error; and in order for the lower court to have committed error, the paper must have been filed.

In this case the shoe is on the other foot, and using the same case as an authority, the circuit judge should have overruled the motion to dismiss.

It occurs to us that instead of a motion to dismiss, that a demurrer would have been the proper method to reach the questions brought in this controversy.

D. A. Scott and E. M. Yerger, for appellee.

The first question, which arises in this case, is as to the jurisdiction of the justice of the peace court. Section 2730, of the Code of Mississippi 1906, is as follows: "Anyone, desiring to sue, before a justice of the peace, shall lodge with him, the evidence of debt, statement of account, or other written statement of the cause of action, and thereupon the justice of the peace shall issue summons, etc."

We are very familiar with the rule of law that pleadings in the justice of the peace courts, are to be treated liberally and indulgently, and that the substance and not the form is looked to.

In the first place as heretofore stated, there is no evidence as to whether or not notes were executed by Lupkin & Son, for the rent due under this lease. If notes were executed, they themselves or copies thereof, were the evidence of debt, and not only should have been but must have been filed in the justice of the peace court, before a summons could be issued. If there were no notes, as intimated in the amendment, prayed to be filed, by the appellant, then the written statement of cause of action must have been so plain and specific that a judgment rendered in the action would be res adjudicata of any other action sought to be brought for the same cause.

Counsel quote, on page four of their brief, an excerpt from the case of Greenburg v. Massey, 90 Miss. 121, which is as follows: "The true rule is that, there must be a written statement of the cause of action, as can be successfully pleaded by the defendant, if sued again on the same cause of action; such a statement as will give the defendant the benefit of the plea of res adjudicata."

We wish to call the court's attention again to the importance of the fact that this record nowhere shows that any contract was filed.

The abstract of the proceedings, from the justice of the peace court, contained a paper, which counsel for appellant presume to have been filed. It is not marked filed, however, and there is no testimony to prove that it was filed, as the first step in the commencement of this suit. Of course, the statute requires, absolutely that a written statement of the cause of action be filed, or that evidence thereof be filed.

In the case of the United States Fidelity & Guaranty Company of Baltimore v. Feed Company, 73 S.W. 364, the transcript sent up, by the justice of the peace, to the circuit court, contained a paper purporting to be an amended complaint, which brought the case within the justice of the...