Western Union Telegraph Co. v. Sullivan

• Citation: 12 So. 460,70 Miss. 447
• Court: Mississippi Supreme Court
• Decision Date: 16 January 1893
• Parties: WESTERN UNION TELEGRAPH CO. v. W. V. SULLIVAN

12 So. 460

70 Miss. 447

WESTERN UNION TELEGRAPH CO. v. W. V. SULLIVAN

Supreme Court of Mississippi

January 16, 1893

October 1892

MOTION in supreme court to dismiss the appeal.

Appellee W. V. Sullivan, brought an action against appellant, the Western Union Telegraph Co., in a justice court of Lafayette county, to recover the sum of twenty-five dollars, the statutory penalty prescribed by the act of 1886 (Laws, p. 91) for failure to promptly transmit and deliver a telegram. There was a judgment for plaintiff in the justice court, and also in the circuit court, on appeal, for the said amount. Thereupon, defendant appeals to this court, contending that § 2354, code 1880, which grants the right of appeal to the supreme court in suits originating in the justice court only where the amount in controversy exceeds fifty dollars, does not apply, because this is a suit on a penal statute, and justices of the peace have no jurisdiction of such suits, even where the amount is within their jurisdiction; that the words "founded on any penal statute," which appear in article 7, p. 405, code 1857, containing the grant of civil jurisdiction to justices of the peace, have been omitted from the subsequent codes; that the justice of the peace, being without jurisdiction, the circuit court will be deemed to have tried the case under its original jurisdiction, and that an appeal will therefore lie to this court.

Appellee moves to dismiss the appeal.

Motion to dismiss sustained.

Brame & Alexander, for motion.

Mayes & Harris, contra.

The justice court has no jurisdiction of any suit based on a penal statute, unless the statute confers it expressly. Cocke v. Board of Police, 38 Miss. 340; 13 S. E. Rep., 431; 11 Ib., 296; 84 Ga, 804. The act of 1886 is a penal statute, and the penalty is a distinct demand. Wilkins v. Telegraph Co., 68 Miss. 6. The act confers no jurisdiction, but leaves that to the general statutes.

The demand here is not a debt, nor is it damages, being for a sum certain. 3 Serg. & Rawls (Pa.); Am. & Eng. Enc. L., "Debt;" 7 Hill, 301; 4 How. (U. S.), 21; 3 Metc., 563; 2 Tex. 481; 5 Md. 337; 47 Ark. 344; 86 Ga. 104; 69 Ind. 199. The jurisdiction conferred in suits on penal statutes by code 1857 has been omitted designedly from the subsequent codes.

As the justice of the peace had no jurisdiction, the circuit court either had original jurisdiction and the judgment is a valid original judgment, or that court was without jurisdiction because the magistrate had none, and the judgment is void. In either case, an appeal lies to this court--in the one case to test the correctness of the judgment, or, in the other case, to test its validity.

Argued orally by C. H. Alexander, for motion, and E. Mayes, contra.

OPINION

CAMPBELL, C. J.

Section 1302 of the code of 1871 (§ 2190, code of 1880; 2394 code of 1892), embraces, in terse and comprehensive language, all of the jurisdiction conferred on justices of the peace by art. 7, P. 405, of the code of 1857,...