Williams v. Stimpson Computing Scales Co.
| Decision Date | 21 January 1929 |
| Docket Number | 27428 |
| Citation | 152 Miss. 305,120 So. 174 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAMS v. STIMPSON COMPUTING SCALES CO. [*] |
COURTS. On appeal from county court, circuit court erred in rendering new judgment against appellant and sureties, instead of affirming and remanding.
On appeal from county court, circuit court erred in rendering new judgment against appellant and against sureties on appeal bond, instead of affirming and remanding to county court for enforcement by county court of original judgment.
HON. B F. CARTER, Special Judg.
APPEAL from circuit court of Jones county, Second district, HON. B F. CARTER, Special Judge.
Action commenced in the county court between C. S. Williams and the Stimpson Computing Scales Company. From a judgment in the circuit court on appeal from the county court, the former appeals. Affirmed in part, and in part reversed and remanded.
Judgment affirmed in part, and reversed in part and case remanded.
Goode Montgomery and J. R. Buchanan, for appellant.
The circuit court erred in rendering a judgment against appellant and his bondsmen. In the recent case of Eaton v Hattiesburg Auto Sales Co. (Miss.), 117 So. 534, it is held that the statute creating and governing the procedure in the county courts does not authorize a summary judgment in the circuit court on an appeal bond which supersedes the judgment of a county court; and without express authority therefor an appellate court is without authority to render such a judgment. The judgment of the circuit court in the case at bar is clearly a violation of the above ruling and in this respect should be reversed.
Shannon & Schauber, for appellee.
Counsel for appellee contends that the judgment rendered in the circuit court was erroneous in that it attempted to enter a judgment in the circuit court. We submit that although the order of judgment gives the Stimpson Computing Scales Company a judgment against C. S. Williams, and sureties on his appeal bond, yet the case is remanded to the county court in the following words: "Wherefore said cause is remanded to the county court of the second district of said Jones County, to be proceeded with as herein directed." It is true that sec. 729, Hem. Code 1927 provides: "If no prejudicial error be found, the matter shall be affirmed and remanded to the county court for enforcement." Yet, in our opinion, the only way to get the benefit of the appeal bond executed by appellant in the county court is to enter a judgment in the circuit court, and then remand the case for further procedure.
The bond executed by appellant in the county court provides "Now, therefore, if the obligators shall pay and satisfy the judgment of the circuit court, and all costs of said appeal, and of the court below, in case the judgment be affirmed, then...
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