Opinion
No. 31566.
March 18, 1935.
1. JUSTICES OF THE PEACE.
Incomplete transcript of record of proceedings in justice court may be corrected and completed by certiorari.
2. JUSTICES OF THE PEACE.
On appeal from justice court, transcript is presumptively correct; there being no suggestion from either party that anything is omitted (Code 1930, sections 64, 66).
3. JUSTICES OF THE PEACE.
On appeal from justice court, alleged defect in transcript, or omission of essential parts, cannot be supplied by oral testimony (Code 1930, sections 64, 66).
4. JUSTICES OF THE PEACE.
Notes sued on in justice court, not shown by transcript to have been lodged with justice, held inadmissible over objection in circuit court, notwithstanding plaintiff testified that he filed notes with declaration (Code 1930, sections 64, 66, 2078).
APPEAL from the circuit court of Scott county.
HON. D.M. ANDERSON, Judge.
Action by H.C. Bassett against L.R. Anthony and others. From a judgment on a peremptorily instructed verdict for plaintiff, defendants appeal. Reversed and remanded.
J. Knox Huff, of Forest, for appellants.
Over the repeated objections noted in the record the court erroneously admitted evidence with reference to the note and deed of trust, the sole "evidence of debt," yet said note and deed of trust were not lodged with the justice of peace, or copies proferted with the declaration; and the court overruled the appellants' motion for a directed verdict; and on such incompetent evidence charged the jury to find for the appellee.
Sections 2078, 64, 66, Mississippi Code of 1930; Sections 751, 67, Mississippi Code of 1930.
The transcript is presumed substantially perfect.
Boyd v. Quinn, 22 So. 802; Sections 64, 751, Code 1930.
That the note and deed of trust were not lodged with the justice of peace must be conclusively presumed.
Frank F. Mize and Colbert Dudley, both of Forest, for appellee.
When the law requires a party to file it, it simply means that he shall place it in the official custody of the clerk. That is all that is required of him; and if the officer omits the duty of indorsing upon it the date of filing that will not prejudice the rights of the party. This seems to be universal in its application to all documents, of whatever nature, which the law required to be filed.
Town v. Lumpkin Son, 114 Miss. 693, 75 So. 546; Meridian Nat. Bank v. Hoyt Bros., 74 Miss. 221, 21 So. 12; Section 2078, Code 1930.
The court found as a matter of fact that the evidence offered by plaintiff had been lodged with the justice of the peace as required by Section 2078, Code 1930.
While the record certified to circuit court on appeal, is competent evidence in circuit court as between plaintiff and defendant (Broadus v. Calhoun, 139 Miss. 28, 103 So. 808), the trial on appeal is de novo. The transcript is introduced to confer jurisdiction and the record here certainly shows affirmatively that at the trial of this case in the circuit court that both an appeal bond and a transcript of the judgment in justice court were before the circuit court and is now before this court. This is all necessary to confer jurisdiction and the evidence before the jury warranted the verdict and in fact it was the only possible verdict under the law and evidence.
Appellee filed his declaration in the court of a justice of the peace of Scott county against the appellants as indorsers on two alleged promissory notes secured by deeds of trust. The declaration did not specifically make the notes and deeds of trust exhibits thereto, and, upon appeal by the plaintiff from an adverse judgment of the justice court, they were not a part of the transcript of the record, and were not referred to therein.
When the alleged notes and deeds of trust were offered in evidence on the trial of the cause in the circuit court, there was an objection thereto on the ground that these evidences of debt were not lodged with the justice of the peace, and that no copy thereof was filed with the declaration. Thereupon counsel for the appellee stated to the court that the notes were filed with the record and withdrawn, and, in the absence of the jury, appellee testified that when he filed his declaration in the justice court, he filed the notes and deeds of trust as a part of his cause of action. Upon this statement the court ruled that since the original evidences of indebtedness were filed or delivered to the justice of the peace, the objection thereto would be overruled. At the conclusion of the evidence, the appellants requested a peremptory instruction on the ground that there was not sufficient evidence to show that the evidences of indebtedness were lodged with the justice of the peace before whom the suit was instituted, and that, consequently, the notes evidencing the alleged indebtedness were incompetent. The court refused the requested instruction and peremptorily instructed the jury to return a verdict for the appellee for the amount sued for.
Section 2078, Code 1930, requires that any one desiring to sue before a justice of the peace shall lodge with him the evidence of debt, statement of account, or other written statement of the cause of action; while section 64, Code 1930, requires that when an appeal from a justice court has been perfected by the giving of the required bond, the justice "shall at once make up a transcript . . . and properly transmit the same to the clerk of the circuit court." Section 66, Code 1930, also requires that a justice of the peace, from whose decision an appeal has been taken, shall at once transmit to the clerk of the circuit court a certified copy of the record of the proceedings, and that as part of this transcript he shall also transmit all the original papers and process in the case, and the original appeal bond given by the appellant.
An incomplete transcript of the record of proceedings in a justice court may be corrected and completed by a certiorari for a more perfect record, and, in the absence of a suggestion from either party that anything is omitted from the record, it will be presumed to be correct. Boyd v. Quinn (Miss.), 22 So. 802. And an alleged defect in transcript of the record, or omission of essential parts thereof, cannot be supplied by oral testimony at the trial in the circuit court. In the case at bar the transcript of the record does not show that the original notes or copies thereof, which are the basis of the suit, were lodged with the justice of the peace, and, consequently, it was error to admit them in evidence over the objections of appellants.
The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.