Opinion
No. 34104.
April 15, 1940. Suggestion of Error Overruled May 13, 1940.
1. FORCIBLE ENTRY AND DETAINER.
Under statute providing that party held out of possession may exhibit his complaint before any justice of peace of county within which land may lie, it is not essential to jurisdiction that affidavit be made before justice of peace of county in which lands lie, since the word "may" is not used in the statute in mandatory sense (Code 1930, sec. 3458).
2. FORCIBLE ENTRY AND DETAINER.
Upon presentation of affidavit upon which unlawful entry and detainer proceeding is instituted to a justice of peace duly signed and certified by a justice of the peace, the justice before whom the proceeding is instituted may issue warrant, and summon other justices, who may proceed to hear the controversy (Code 1930, sec. 3458).
3. FORCIBLE ENTRY AND DETAINER.
Unlawful entry and detainer action was tried de novo on appeal from justice of peace to circuit court which court had the same power to amend as had justice of peace before whom action was instituted.
4. FORCIBLE ENTRY AND DETAINER.
The fact that affidavit upon which unlawful entry and detainer proceedings were instituted described land as being in wrong township was not fatal, since circuit court, wherein cause was tried de novo on appeal from justice of peace, had power to amend.
5. WITNESSES.
In unlawful entry and detainer action by personal representative of deceased mortgagee who had foreclosed trust deed, mortgagor's wife was incompetent to testify that land involved was homestead, since wife would have an interest in the homestead and a right to live upon it and to have her support therefrom.
6. WITNESSES.
In unlawful entry and detainer action by personal representative of deceased mortgagee who had foreclosed trust deed, the mortgagor's wife was competent to testify regarding genuineness of mortgagor's signature.
7. APPEAL AND ERROR.
Admission of incompetent evidence for defendants was harmless where jury found for plaintiff.
8. APPEAL AND ERROR.
Where finding of jury in favor of plaintiff in unlawful entry and detainer action was based on disputed evidence, the finding was binding on Supreme Court.
APPEAL from circuit court of Leake county; HON. PERCY M. LEE, J.
O.H. Barnett, Jr., of Carthage, for appellants.
It was error for court to assume jurisdiction of case because complaint and affidavit not made before the Justice of the Peace of Leake County, Mississippi.
Code of 1930, ch. 69, secs. 3458, 3459.
The court below could not enter valid judgment where judgment of the Justice of the Peace Court placed land in different township from that stated in complaint and warrant.
The court committed error in sustaining objection to testimony of Mallory Gee.
In the first place the appellant, Mallory Gee, was not undertaking to establish his claim against the estate of a deceased person. The deed of trust in question covered the homestead of appellants, which was in favor of J.W. Rimmer Brother, a partnership composed of J.W. Rimmer and H.W. Rimmer, H.W. Rimmer being the surviving partner. Sec. 1529, Code of 1930, has reference to estates of individuals, and not of partnerships or corporations. The deed of trust was payable to a partnership and was foreclosed by the partnership and so far as this record shows was owned at the time of this trial by the partnership. The case of McCutchen v. Rice, 56 Miss. 455 is a case directly in point with the case at bar, the only difference being that in the Rice case the suit was filed against the surviving partner, and he, the surviving partner, was a party to the suit. In the case at bar, the surviving partner, H.W. Rimmer, of the partnership of J.W. Rimmer Brother actually filed the suit but died before the case was finally disposed of. In the McCutchen-Rice case, supra, it was held that such testimony is competent.
McCutchen v. Rice, 56 Miss. 455; Faler v. Jordan, 44 Miss. 286; Sec. 1529, Code of 1930; Warren v. Jones, 70 Miss. 227, 14 So. 25; Lann Co. v. Carberry, 114 Miss. 519, 75 So. 377.
The court below committed error in not holding the deed of trust was not foreclosed under Sections 2169 and 3037, Mississippi Code 1930.
The court below committed error in not sustaining appellant's motion for a directed verdict.
Sec. 1780, Code 1930.
The court below committed error in overruling appellant's motion for a new trial.
Universal, etc. Co. v. Taylor, 178 Miss. 143, 172 So. 756; Sims v. McIntyre (Miss.), 8 S. M. 324, 327; Teche Lines, Inc., v. Bounds, 182 Miss. 638, 652, 179 So. 747, 751; Beard v. Williams, 172 Miss. 880, 161 So. 750, 751.
A.M. Warwick, of Carthage, for appellee.
After a careful reading of Section 3458, Miss. Code 1930, we are unable to find that it is mandatory that the party shall in person go before the justice of the peace of the county wherein the land is situated and actually make his complaint and subscribe to same and make his oath thereto in the presence of the said justice of the peace. It only requires that the party "may" exhibit his complain before the justice of the county wherein is situated the land. The implication is that he (the party seeking such relief) is at liberty to make and prepare his complaint, substantially as directed by the statute wherever he pleases; he, by this statute, is only required to "exhibit" his complaint before the justice of the peace.
We respectively submit that Sections 3458 and 3459, when construed together, merely require that the complaint shall be lodged or filed with the proper justice of the peace, one in the district wherein is situated the land, and that the justice before whom the suit is instituted shall issue the process.
The land described in the complaint and in the warrant determines, we submit, the jurisdiction of the court.
Appellant, by his appeal bond and transcript of record from the justice of the peace court, conferred jurisdiction to the circuit court, where the case was tried anew on its merits
Sec. 63, Code of 1930; Harvey v. Clark et al., 32 So. 906.
We respectfully submit that the court very properly excluded the testimony of defendant, Mallory Gee, and refused to let him testify that he had not executed the trust deed. This trust deed was executed in favor of J.W. Rimmer Brother (H.W. Rimmer). After death of J.W. Rimmer, the trust deed was foreclosed on and brought in at the foreclosure sale by H.W. Rimmer; this purchase by H.W. Rimmer was made July 7, 1938. This conveyance gave H.W. Rimmer right of possession, and he could maintain forcible entry and detainer action for possession.
Smith v. Williams-Brooke, 111 Miss. 393, 71 So. 648; Huff v. Murray, 158 So. 475; Marks v. Howard, 71 So. 649; Sec. 1529, Code of 1930; Combs v. Black, 62 Miss. 831; Love v. Stone, 56 Miss. 449; Rushing v. Rushing, 52 Miss. 329; Jacks v. Bridewell, 51 Miss. 881.
We submit that even though it may have been proper to have permitted Mallory Gee to deny the execution of the trust deed, such error, if any at all, was cured by the admission of such testimony from his wife Mollie Gee. To have accepted the testimony of appellant, Mallory Gee, would only have been cumulative testimony.
This trust deed was foreclosed by the trustee therein in strict compliance with Sections 2161 and 2169, Miss. Code of 1930.
Lynchburg Shoe Co. v. Castleman, 76 So. 878; Goodman v. Durant Bldg. . Loan Assn., 71 Miss. 310, 14 So. 146.
Defendants were not entitled to a directed verdict merely because they testified that Mallory Gee did not sign the trust deed. We submit that, in the first place, neither of the defendants should have been permitted to give such testimony, in face of Sec. 1529, Code of 1930, prohibiting a witness to testify to establish his defense against the estate of a deceased person, where such defense originated during the lifetime of such deceased. However, this testimony was sufficiently rebutted and contradicted and became an issue that was submitted to the jury, and their verdict resting on same should be sustained.
The plaintiff made a prima facie case merely by introduction of the trustee's deed.
Williams-Brooke v. Smith, 71 So. 648; Huff v. Murray, 158 So. 475.
The lower court very properly refused a new trial. It is hardly necessary to state the long-settled rule of this court to regard favorably the action of the trial court upon a motion for a new trial involving the sufficiency of the evidence to uphold the verdict. Railway Co. v. Crayton, 69 Miss. 152, 12 So. 271. The granting of a new trial is sometimes within the discretion of the court, and if, in such cases, a new trial is refused, a strong case must be shown before this (the Supreme) Court will hold it error.
Dulaney v. Rankin, 47 Miss. 391; Prewitt v. Coopwood, 30 Miss. 369; Waul v. Kirkman, 13 S. M. 599.
This is an appeal from a judgment in the Circuit Court of Leake County, in a proceeding in unlawful entry and detainer for the possession of certain lands described in the record, which the appellant claims to be a homestead, and in which it was contended that Mallory Gee, the husband, did not sign the deed of trust, under foreclosure of which H.W. Rimmer claimed title to the premises, and brought this action in a special unlawful entry and detainer court to secure possession of the land.
The indebtedness secured by the deed of trust was to a firm styled J.W. Rimmer Brother, composed of H.W. and J.W. Rimmer. The surviving member of this firm, H.W. Rimmer, caused the deed of trust to be foreclosed, and purchased at the sale thereof. The unlawful entry and detainer court awarded possession of the premises to H.W. Rimmer, purchaser at the foreclosure sale, and rendered judgment for the appellee, with proceedings to obtain possession, and also a personal judgment for the use and occupancy of the land; from which the appellants took an appeal to the Circuit Court, where the case was tried anew.
It appears that the affidavit upon which the unlawful entry and detainer proceedings were instituted was made before a justice of the peace in Attala County, where the Rimmers lived, while the land was situated in Leake County, where the appellants lived. It is complained, or assigned as error, that the fact that the affidavit was not made before a justice of the peace of Leake County rendered it void. Section 3458, of the Code of 1930, provides that: "The party turned out of possession, or held out of possession, may exhibit his complaint, before any justice of the peace of the county within which the lands, or some part thereof, may lie, to the following effect" (setting out a form of affidavit). The following section provides for the form of the warrant, and for the summoning of other justices of the peace.
It is contended that it was necessary to the jurisdiction of the unlawful entry and detainer court that this affidavit be made before a justice of the peace of the county in which the premises lie; and, having been made before a justice of the peace outside of the county, the affidavit was without legal effect.
We are unable to accept this view. The statute uses the word "may," as will be seen by referring to the above quotation; and it is not there used in the mandatory sense. The affidavit is part of the proceeding to institute a lawsuit, and on its presentation to a justice of the peace duly signed, and certified by a justice of the peace, the justice before whom the proceeding is instituted, may issue warrants, and summon other justices, who may proceed to hear the controversy. It is not essential to jurisdiction that an affidavit be made before a justice of the peace of the county in which the lands lie.
It is next contended that the affidavit made to the justice of the peace before whom the proceeding is instituted described the land as being in the wrong township, it being claimed that township 12 was used in the original proceeding before the justice of the peace; whereas it should have been townshiop 11; and that the land described in the affidavit was six miles from where the land actually lay, and that no amendment was made in the unlawful entry and detainer court to correct this description. The cause was tried de novo on appeal to the Circuit Court, which court had the same power tro amend as had the justice of the peace before whone the suit was instituted. There is no merit in this contention.
On the trial in the unlawful entry and detainer court there was no claim that the husband did not sign the deed of trust; but on the trial in the Circuit Court it was contended that mallory Gee did not sign the deed of trust; that the property was a homestead, and consequently the deed of trust was void, as were all the proceedings under it; and that the court should have directed a judgment for the appellants.
When the case was tried in the Circuit Court, H. W. Rimmer had died, and the suit was proceeded with in the name of his representative. Mollie Gee, wife of Mallory gee, was there offered as a witness to testify that the latter had owned the land, that it constituted a homestead, and that he did not sign the deed of trust.
This evidence was disputed by testimony tending to show that Mallory Gee did sign the deed of trust — that his signature was genuine. Signatures of his which were admitted to be genuine were offered in evidence; and the genuineness of the signature to the deed of trust was testified to by witnesses claiming to be familiar with his handwriting. The testimony of Mollie Gee was objected to but it was admitted into evidence by the court. Mallory Gee was introduced in rebuttal of the testimony of witnesses to the genuineness of his signature; and over objection he testified that he did not sign the deed of trust — that it was not his signature.
The jury found for the appellee, and it is now immaterial whether or not Mollie gee was a competent witness, because of the fact that her testimony was contradicted, and the jury found against her.
However, since Mollie Gee, as the wife of Mallory Gee, has an interest, recognized by the law, in the homestead, and a right to live upon it and to have her support therefrom, and she would be incompetent to establish a rigth through her own testimony, where the opposing party to the contract had died. If the sole interest in the homestead was in the husband, with none in her, she would have been a competent witness for her husband. While it was competent for Mollie Gee to testify as to the genuineness of his signature, her testimony should have been limited to that issue, and should not have been given in respect to any other issues involved.
However, the finding of the jury eliminates all errors complained of, and being on disputed evidence, is binding upon the Court.
The other assignments of error are without merit, and do not require discussion. We find no reversible error, and the judgment of the lower court is affirmed.
Affirmed.