Xydias v. Pellman

• Decision Date: 01 January 1920
• Docket Number: 20962
• Citation: 121 Miss. 400,83 So. 20
• Court: Mississippi Supreme Court
• Parties: Xydias v. Pellman.

83 So. 20

121 Miss. 400

Xydias v. Pellman.

No. 20962

Supreme Court of Mississippi

January 1, 1920

JUSTICE OF THE PEACE. Defective certification of record not cured or waived.

Where a justice of the peace has failed to certify his record as required by section 84, Code 1906 (Hemingway's Code section 64), the circuit court is without jurisdiction to try the case or render judgment therein and such defect may not be cured or waived, and where the justice makes an amendment or proper certificate after judgment, the same cannot relate back to give validity to the prior judgment although after a proper certificate has been made the court has jurisdiction and may then proceed to try the case again.

HON. R S. HALL, Judge.

Suit by Jake Pellman against certain parties in justice court. Judgment was rendered for plaintiff and defendants appealed to the circuit court, where a judgment was again rendered for plaintiff, against the said defendant and A. J. Xydias as surety on the appeal bonds, and the surety moved to quash the evecution and set aside the judgment; from the overruling of the motion the surety appeals.

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

T. C Hannah, for appellant.

When this case was tried in the circuit court at the January, 1919, term, the circuit court was without jurisdiction to try the case and render judgment. There was nothing before the court except the original papers in the justice court, with a cost bill bearing the usual certificate as to the correctness of said cost bill.

This court in the case of Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481, says: "The want of such a certified copy is not a defect which may be cured or waived. It is jurisdictional. Without it the circuit court cannot proceed with the case. It is without jurisdiction and on appeal to this court there is no jurisdiction here. The question of jurisdiction can be raised at any time." In support of this holding there is cited in the above opinion Ruff v. Montgomery, 83 Miss. 184, 35 So. 465; and Bal v. Sledge, 83 Miss. 747, 35 So. 214; Gardner v. Railroad Company, 78 Miss. 640, 29 So. 469; McPhail v. Glann, 47 So. 666; City of Greenwood v. Weaver, 50 So. 981; Allen v. State, 53 So. 498. The same doctrine has later been announced and approved in the case of Cawthorn v. State, 57 So. 224.

A judgment having been rendered when the court was without jurisdiction is absolutely null and void. The appellant here proceeded to quash the execution and vacate the judgment in the manner expressly approved by this court in the case of Kramer v. Holster, 55 Miss. 243.

We respectfully submit that the trial court erred in overruling the motions of the appellant there and that this case should be reversed because of said error. We further respectfully submit that the trial court erred in sustaining the motion of the appellee to permit the justice of the peace to make the amendment shown by the record and to hold the original judgment rendered in this cause valid.

I do not want to be understood as contending that this record could not be amended. I, of course, admit that it was proper for the justice if the peace to supply the missing certificate. I do contend, however, that, in the first place, the amendment made in this matter was improper and unauthorized because there had never been any attempt to file the certificate required by the statute and there was, consequently, nothing to amend; and in the second place, that, when the amendment was made, it could not relate back so as to impart validity to a judgment that was absolutely null and void for the want of jurisdiction.

Section 64, Hemingway's Code (section 84, Code of 1906) provides the form of certificate as follows: "Copy of the record of the proceedings before a justice of the peace of ----- county in district No. --- of said county, in the case therein set forth, to wit: (Here copy the entries on the docket, and certify as follows, viz.:) "State of Mississippi, ----- county:

"I, ----, a justice of the peace of the 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 ----- day of -----, A. D. -----. ----- J. D."

An examination of this record and especially the cost bill and testimony of H. C. Greer, reveals the fact that there was no effort made to comply with this section. No certificate of any kind, except that accompanying the cost bill, was filed in the circuit court. Consequently, the only way in which this defect could be supplied was for the justice of the peace to come into the circuit court and supplement his record by attaching to it a certificate in accordance with the statute. The method adopted, I submit, was absolutely futile because it was an attempt to supply by amendment something that had never existed. Amendments cannot be allowed except where there has been some original attempt to supply the matter that is to be amended.

In 31 Cyc., page 302, it is said: "4. Necessity for something to amend by. In general, before an amendment will be allowed as to a matter of form, there must be something to amend by, that is, there must be something in the record to show that what is sought by the amendment was originally designed, but has been omitted through mistake or oversight."

A further analysis of the record shows that the only certificate that accompanied this record was in the following words: "I certify that the above is a true bill of costs."

It will be observed that the foregoing certificate is not an attempt to provide the certificate required by section 664 of Hemingway's Code, but that it is simply a certificate as to the correctness of the cost bill. In other words, there had never heen an attempt on the part of the justice of the peace to provide the certificate required by the code and there was consequently no certificate in the record to amend. The only manner by which the requirements of the Code could be met was by the justice of peace preparing an entirely new certificate and attaching it to the original papers with leave of the court. But even granting that the amendment as made was the proper method of supplying the defect, and granting that the certificate to the bill of costs afforded the basis of an amendment, I respectfully submit that the certificate as amended does not meet the statutory requirements. The certificate that now accompanies this record is in the following language: "I certify that the above is a true copy of the proceedings in the above cause, a true bill of costs." It will be observed that this certificate does not meet the requirements of the statute. The justice of the peace, according to the statute, must copy the entries appearing on his docket and then certify, "that the foregoing is a copy of the record of the proceedings," etc. The certificate in the record in this case does not show any docket entries; does not show that it is a copy of the record, but merely shows, that the above is a true copy of the proceedings."

In Hughston v. Cornish, 59 Miss. 372, this court says: "Every justice of the peace shall keep a well-bound book, styled 'A docket,' in which he shall enter all the proceedings before him in every case. Code 1880, section 2193. That is the record of a case required to be made by the justice of the peace; his "minutes" to serve as a memorial of his proceedings in cases civil and criminal. It is this record that the justice is to transmit a copy to the clerk of the circuit court, when an appeal is taken from his decision. Code, 1880, pp. 2241, 2353, 2357."

I therefore submit that the certificate now in this record is fatally defective because there is nothing to show any docket entries from the justice of the peace and the certificate fails to show that it is a copy of the record, but merely shows that it is a copy of the proceedings.

But, even granting for the sake of argument that the certificate that accompanied the cost bill afforded a predicate for the amendment, and granting that the amendment has been properly made, can this amendment operate to give life and vitality to a judgment that was rendered at a time when the circuit court had no jurisdiction in the matter? I respectfully submit this case was a pending cause in the circuit court and that the circuit court had no jurisdiction to render a judgment, because of the lack of this certificate, that when the certificate was supplied, that the case should have proceeded to trial de novo.

Suppose that a suit is filed in the circuit court and the sheriff receives process for the defendant and returns the same into court without having served it or making any return whatever thereon; that at the return term of court judgment is rendered by default against the defendant, and execution is issued and a motion is made to quash the execution and vacate the judgment; that thereupon the sheriff proceeds and serves the summons on the defendant and makes a return showing the service of process long after the judgment has been rendered. I submit that there is just as much reason for holding that this service of process and the return thereon relates back so as to sustain the jurisdiction of the court and render the judgment valid as there is for holding that the amendment made in this case relates back so as to give vitality to the judgment rendered at the former term of court in this cause. Manifestly under the almost uniform holding of this court the judgment that was rendered against the appellant here was absolutely void. The execution issued thereon was null and void. The motions made by this appellant should have been sustained and the motion made by the appellee to amend and correct his record...