Worley v. Pappas

• Decision Date: 08 June 1931
• Docket Number: 29450
• Citation: 135 So. 348,161 Miss. 330
• Court: Mississippi Supreme Court
• Parties: WORLEY v. PAPPAS

135 So. 348

161 Miss. 330

WORLEY v. PAPPAS

No. 29450

Supreme Court of Mississippi

June 8, 1931

Division B

Suggestion Of Error Overruled July 3, 1931.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

On motion to reinstate appeal. Motion overruled.

For former memorandum opinion, see 134 So. 159.

Motion overruled.

Knox Lamb, of Greenwood, for appellant.

The appeal in this case was perfected under section 4 of the Code of 1930.

The case at bar was filed in the justice of the peace court in June, 1930, and was appealed and tried de novo in the county court in September, 1930, and was pending in the circuit court on November 1, 1930, when section 705 of the Code of 1930, supra, took effect. This section of the Code is not among the general laws of the state of Mississippi which were passed at the regular session of the Legislature of 1930 and took effect from and after their passage, but appears for the first time in the Code of 1930.

"The repeal of any statutory provision by this code shall not affect--any suit or proceeding had or commenced in any civil case--previous to the time when such repeal shall take place."

Section 4 of the Code of 1930; Wilkinson v. Hudson, 71 Miss 130, 13 So. 866; 25 R. C. L., pp. 944-945; 25 R. C. L., p. 1077; 25 R. C. L. 1076.

The proviso of section 705 of the Code of 1930, supra, with reference to appeals is in violation of the provisions of the constitution of the United States and of the constitution of the state of Mississippi.

Section 24 of the Constitution of the state of Mississippi; Chicago, St. Louis & New Orleans Railroad Co. v. Moss & Co., 60 Miss. 641; Frank J. Bowman v. Deward A. Lewis et al., 101 U.S. 22, 25 L.Ed. 989.

OPINION

Griffith, J.

On a former day the appeal in this case was dismissed under the concluding proviso of section 705, Code 1930. 134 So. 159. Appellant now contends that the right of appeal was preserved in this case by section 4, Code 1930, which provides that "The repeal of any statutory provisions by this code shall not affect . . . any right accruing or accrued . . . or any suit or proceeding had or commenced in any civil case . . . previous to the time when such repeal shall take place; but the proceedings in every such case shall be conformed, as far as practicable, to the provisions of this code." It was the purpose of section 4, aforesaid to preserve all accruing or accrued rights together with any suit theretofore commenced in any civil case to enforce those rights; but "it has been settled from an early day in this state that appeals are not a matter of right, and are allowable only in cases provided for by statute." Bridges v. Board of Supervisors of Clay County, 57 Miss. 252, 254. When the final judgment was rendered in the circuit court in this case the suit had been fully heard and was at an end. The words "suit or proceeding," although comprehensive in their import do not, in a statute such as said section 4, extend to or include appeals; see 7 Words and Phrases, First Series, p. 6770, except perhaps when the appeal is pending, which is not the case here, 4 Words and Phrases (Second Series), p. 776. See, also, 1 C. J., p. 949.

Appellant contends further that said proviso of section 705, Code 1930 is in violation of the equal protection clause of the Fourteenth Amendment of the Federal Constitution, because the said proviso allows a plaintiff, having a demand of less than two hundred dollars, to deprive a defendant of the right of final appeal to the Supreme Court by the option of instituting the suit in the justice court, whereas exactly the same...