Williams v. Johnson

• Decision Date: 27 April 1936
• Docket Number: 32221
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. JOHNSON

167 So. 639

175 Miss. 419

WILLIAMS v. JOHNSON

No. 32221

Supreme Court of Mississippi

April 27, 1936

Division A

1. LANDLORD AND TENANT.

Circuit court held authorized to permit amendment of one hundred dollars appeal bond from unlawful entry and detainer court to meet statutory requirement for appeal bond of not less than two hundred dollars, or to permit execution of new bond (Code 1930, sections 63, 74).

2. LANDLORD AND TENANT.

Transcript of proceedings of unlawful entry and detainer court held to show substantial compliance with statute, conferring jurisdiction on circuit court on appeal thereto although justice did not precede his record with statement that it was copy of record of proceedings had before him (Code 1930, section 65).

3. LANDLORD AND TENANT. Grantee of landlord who had months before served notice to vacate on tenant, who went into possession under rental contract requiring him to vacate on fifteen days' notice, unless tenant paid rent in arrears could maintain unlawful entry and detainer proceeding against tenant, who failed to pay rent, as an "assign" of landlord, although grantee had never been in possession (Code 1930, section 3456).

The word "assigns," as used in Code 1930, section 3456 comprehends all those who take, immediately or remotely, from or under an assignor, whether by conveyance, devise, descent, or act of law.

4. LANDLORD AND TENANT.

Tenant claiming that unlawful entry and detainer proceeding was barred because not brought within one year after wrongful deprivation or withholding of possession had burden of proving when his possession became adverse (Code 1930, section 3456).

5. LANDLORD AND TENANT.

One-year limitation on unlawful entry and detainer action against tenant did not begin to run when tenant went into possession under contract requiring him to vacate on fifteen days' notice, but only fifteen days after tenant received notice to vacate (Code 1930, section 3456).

6. LANDLORD AND TENANT.

Pendency of attachment against grantor of plaintiff in unlawful entry and detainer proceeding, sued out by defendant and levied on land in controversy, constituted no defense to unlawful entry and detainer proceeding (Code 1930, section 3456).

HON. A. G. BUSRY, Judge.

APPEAL from circuit court of Clarke county HON. A. G. BUSBY, Judge.

Unlawful entry and detainer proceeding by J. T. Johnson against W. E. Williams. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

H. F. Case, of Quitman, for appellant.

Sections 64 and 65 of the Code of 1930 require the justices to send up on appeal to the circuit court a transcript of the record. It is a copy of the docket entries and judgments which he is to certify.

Hughston v. Cornish, 59 Miss. 372.

The record of this case will disclose that there was no certified transcript of the record of the proceedings had in the unlawful entry and detainer court. And this court has held that the circuit court is without jurisdiction where the proceedings of the justice court are not certified as required and that the failure to certify the transcript shall not be waived.

McPhail v. Blaun, 47 So. 666; Xydias v. Pellman, 121 Miss. 400, 83 So. 620; Ball v. Sledge, 82 Miss. 747, 35 So. 124.

The trial court committed error in not sustaining motion to dismiss and was without jurisdiction to try the case.

Warren v. African Baptist Church, 50 Miss. 223; Busby v. Grayham, 26 Miss. 211.

It is undisputed that appellee Johnson never had possession of the property sued for. That he procured a deed to the property from the Long Bell Lumber Company and that the Long Bell Lumber Company had not had possession of the property since July 25, 1932.

McCorkle v. Yarrell, 55 Miss. 576; Owen v. Monroe County Alliance, 27 So. 383, 77 Miss. 500.

Section 3456, Code of 1930, under the authority of which appellee Johnson instituted the suit against appellant expressly provides that it shall lie at any time within one year after the deprivation or withholding of the property. It is, therefore, under the statute, an indispensable prerequisite to the right of appellee to maintain his suit that he show he brings himself within the one year limitation.

Rabe v. Fyler, 10 S. & M. 440; 37 C. J., page 709, and page 718, par. 33; Gordon v. Anderson, 90 Miss. 677, 44 So. 67.

The lower court was in error in directing a verdict in this case for appellee.

W. F. Latham, of Quitman, for appellee.

When an appeal bond is defective in any respect the circuit court should permit it to be amended.

Gaddis v. Palmer, 60 Miss. 758; Leavenworth v. Crittenden, 62 Miss. 573; James v. Woods, 65 Miss. 528.

A bond in a penalty less than the minimum sum required by law is not void, but may be amended.

Denton v. Denton, 77 Miss. 375; Section 74, Code of 1930.

There is nothing in the record to show that appellant was holding adversely to f he Long Bell Lumber Company until demand was made on appellant for rents or possession and it was incumbent on the appellant to show when, if ever, the holding assumed an adversary character, as the statute did only commence running from that period.

Rabe v. Fyler, 10 S. & M. 440.

This court will readily see that this suit was brought within ninety days after the holding of appellant first became known adversely to the Long Bell Lumber Company, who was the grantor of the appellee.

We, therefore, respectfully submit to the court that the one year statute of limitation within which the action of unlawful detainer could be maintained had not run against the Long Bell Lumber Company, the prior owner of the property, nor against the appellee, J. T. Johnson, who was the grantee of the said Long Bell Lumber Company.

The lower court was not in error in directing a verdict in this case for appellee.

Argued orally by H. F. Case, for appellant, and by W. F. Latham, for appellee.

OPINION

McGowen, J.

This is an unlawful entry and detainer proceeding had before three justices of the peace, and is here on appeal from a final judgment of the circuit court of Clarke county awarding J. T. Johnson possession of a certain house and lot in the town of Quitman, Miss.

Appellee, J. T. Johnson, filed a petition before a justice of the peace against W. E. Williams, appellant, alleging that he withheld possession of certain lands, and upon a trial of the case in the unlawful entry and detainer court a judgment was entered by that court in favor of Williams, and the petition was dismissed. On appeal therefrom to the circuit court, at the conclusion of the evidence, the court granted to Johnson a peremptory instruction, and judgment was entered accordingly.

Appellant, Williams, urges here for reversal that the court below erred in refusing to dismiss the suit for want of jurisdiction, which motion was upon two grounds: (1) Because the appeal bond from the unlawful entry and detainer court named a less penalty than that provided for by statute; and (2) that there was no transcript of the proceedings of the lower court as required by law.

The court below held that the bond was insufficient, but permitted Johnson to amend same so as to comply with the statute, which was promptly done, and held further that the court had jurisdiction for reason that there was sufficient transcript of the record to comply with the requirements of the statute.

There was no error in the action of the court in permitting the appeal bond to be amended. The appeal bond from the unlawful entry and detainer court named a penalty of one hundred dollars. Section 63 of the Code of 1930 requires that an appeal bond in such cases shall not be less than two hundred dollars, and the court below permitted the bond to be thus amended, or a new bond filed; and section 74, Code of 1930, permits amendments of or the execution of a new bond, where the bond is defective. Gaddis v. Palmer, 60 Miss. 758; Leavenworth v. Crittenden, 62 Miss. 573; James v. Woods, 65 Miss. 528, 5 So. 106; Denton v. Denton, 77 Miss. 375, 27 So. 383; Thorsen v. Illinois C. R. Co., 112 Miss. 139, 72 So. 879. The latter case refers to an appeal to the Supreme Court from the circuit court, but the principles involved are the same.

The record sent up to the circuit court by the justice of the peace, who presided over the unlawful entry and detainer court, contained the petition, process for the defendant and the two other justices of the peace, the plea of the defendant, motion for bond for costs, an entry which required the "defendant" to make bond in the sum of twenty-five dollars, the appeal bond to the circuit court for one hundred dollars approved by the justice of the peace on February 8, 1934, and judgment of the court in the case of J. T. Johnson v. W. E. Williams, No. 174, signed by Covington, Eddins, and McLeod, members of the unlawful entry and detainer court, to which was attached the following certificate:

"The State of Mississippi, County of Clarke.

"I, D. W. Covington, a justice of the peace in said county, certify that the foregoing is a copy of the record of the proceedings before me in the case stated therein, as appears on my docket. Given under my hand this the 8th day of Feb. A. D. 1934.

"D. W. Covington, Justice of the Peace."

The justice of the peace did not precede his record with the statement that it was a copy of the record of proceedings had before him in that case, as delineated in the first paragraph of section 65, Code of 1930; but, in our opinion, the certificate, together with the judgment and other papers shows a sufficient and substantial compliance with the statute to confer jurisdiction on the circuit court on appeal thereto, as well as a substantial compliance with the requirements of the statute. We also think float the cases of ...