Summary
noting that "[t]he requirements for appeals are purely statutory"
Summary of this case from Jones v. City of RidgelandOpinion
No. 35545.
May 8, 1944.
1. APPEAL AND ERROR.
The requirements for appeals are purely statutory.
2. JUSTICES OF THE PEACE.
The statutory requirement as to filing bond on appeal from justice of the peace to circuit court is mandatory and jurisdictional (Code 1942, sec. 1198).
3. JUSTICES OF THE PEACE.
Where no statutory appeal bond was given on appeal from justice to circuit court, but in lieu thereof one of defendants delivered his personal check to justice which was cashed by circuit court clerk after transcript was filed with him, circuit court acquired no jurisdiction and should have dismissed appeal (Code 1942, sec. 1198).
4. JUSTICES OF THE PEACE.
Statute authorizing amendment of appeal bond applies only where a defective or insufficient bond has been filed or properly tendered, but does not apply where there has been no attempt to give a bond, hence did not apply where party seeking to appeal to circuit court from justice of the peace gave personal check to justice in lieu of an appeal bond (Code 1942, secs. 1198, 1208).
5. APPEAL AND ERROR.
Where record on appeal did not show that motion was made in circuit court to dismiss appeal from justice of the peace for failure to file statutory appeal bond, Supreme Court was required to consider question as though no such motion was made (Code 1942, sec. 1198).
6. APPEAL AND ERROR.
The failure to furnish statutory bond on appeal from justice to circuit court involves a jurisdictional question, which can be raised in Supreme Court for first time (Code 1942, sec. 1198).
7. APPEAL AND ERROR.
The circuit court having no jurisdiction to hear on merits case appealed from justice court for failure to file statutory appeal bond, Supreme Court likewise had no jurisdiction and could only dismiss appeal to circuit court and leave judgment of justice court in full effect (Code 1942, sec. 1198).
ANDERSON, J., dissenting.
APPEAL from the circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
Ralph L. Landrum, of Jackson, for appellant.
No appeal bond and no written notice of appeal were filed within the ten days allowed by law, and none of the other requisites of Section 64, Code of 1930, with reference to appeal of cases from justice of the peace courts were met. We most respectfully submit that, as no appeal bond was given within the time required by law, the circuit court had no jurisdiction and that the judgment of the justice court still stands.
Murff v. Osburn (Miss.), 24 So. 873; Rayborn v. Cothern (Miss.), 43 So. 70; Underwood Typewriter Co. v. Taylor, 94 Miss. 584, 48 So. 15; Humphreys v. McFarland (Miss.), 48 So. 182; Donald Bros. Mercantile Co. v. Marsh (Miss.), 48 So. 230; Johnson v. Marshall (Miss.), 48 So. 182; Carney v. Moore, 130 Miss. 658, 94 So. 890; Lamas v. Renaldo, 151 Miss. 325, 117 So. 331, 152 Miss. 353, 118 So. 417; Anthony v. Bassett, 172 Miss. 206, 159 So. 854; Mann v. Lowry, 58 Miss. 73; Gardner et al. v. Cade, 190 Miss. 505, 200 So. 720; Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769; Welch v. Hannie, 112 Miss. 79, 72 So. 861; Ball, Brown Co. v. Sledge, 82 Miss. 747, 35 So. 214; Code of 1930, Secs. 64, 65, 66, 67, 74.
All cases cited by counsel for appellee apply to cases in which bonds were filed, either within or beyond the time allowed by law, and not one case cited by appellee applies in a case where a check or some other substitute for a bond was given.
J.D. Guyton, of Kosciusko, for appellees.
Appellant appeals to this court, and for the first time challenges the right to appeal from justice of the peace court to circuit court by means of a good check, for an amount more than sufficient to pay the demand of the appellant and all costs. No serious challenge is made as to the amount of this check, except to merely say it was not double the amount of plaintiff's demand and cost. It is claimed in the argument of appellant that the "check" is no bond at all, and further that the record fails to show it was filed within ten days from date of judgment. Many cases are cited by appellant; but when we examine these cases we find that they are cases in which the appellant from justice of the peace court clearly failed to file his bond within the time limit for appeals, and the record disclosed the fact that the bonds were filed too late, or that no bond was in fact filed at all, or that there was no transcript of the record filed so as to show final disposition in the justice of the peace court, or that the suit was based on a writing which was not filed in the justice of the peace court by original or copy and objection was made to its introduction as evidence because not filed. In all the cases cited by appellant where the bonds were in fact given it was clearly shown by the transcript or on the hearing of a motion to dismiss or for certiorari that the appeal bond was in fact given after the time for appealing had expired.
The case at bar is no such case as any cited by appellant. Here an appeal bond of some sort was in fact given. In was a perfectly good one and entirely sufficient. No better bond could be found. Sections 64 and 65, Code of 1930, so much relied on by the appellant, were in fact substantially complied with in the case at bar. Section 64, which appellant in part quotes, provides for an appeal from the justice of the peace court within ten days from rendition of judgment by giving bond for double the amount involved payable to the opposite party and approved by the justice of the peace. The record shows that in lieu of giving a regular appeal bond the appellees in the case at bar gave a perfectly good check for $250. It is true that the record fails to show the date the check was delivered to and accepted by the justice of the peace; but it is manifest that the justice accepted it, and that in lieu of and as a substitute for and as an appeal bond the justice delivered the check to the circuit clerk on the day he filed his transcript, and this check was in such form that the clerk of the circuit court could and did deposit and collect it, and that the clerk held this $250 in cash as a means of answering and meeting and satisfying any judgment the appellant might recover in the circuit court against the appellees. No formal bond could accomplish any more. It is also true that the record does not show that this check was actually delivered to the justice of the peace within ten days from the date of judgment. This is a formal defect in the record which could have been cured on proper motion by either party. Appellant says he made a motion to dismiss, admitting he made no record of it. This sort of procedure is not allowed in the circuit court. It might well be said that when this oral and informal motion was made it was discovered that the check was in fact filed with the justice of the peace within the ten day limit, and it must be presumed that such was shown, otherwise the circuit court, following the cases cited by the appellant, would have dismissed the appeal.
If the transcript from the justice of the peace court is defective merely, and this defective record is challenged, the appellant should be permitted to perfect the record, unless the record shows on its face affirmatively that it is so defective that jurisdiction was not obtained by circuit court, or the appeal was not taken within ten days, and such defect will be deemed to be waived unless the question is presented to the circuit court, and by it acted on, and the record on appeal to the Supreme Court shows affirmatively such objection and action.
Keys v. Borden, 178 Miss. 173, 171 So. 887; Denton v. Denton, 77 Miss. 375, 27 So. 383; Thorsen v. Illinois Cent. R. Co., 112 Miss. 139, 72 So. 879; Barrett v. Pickett, 117 Miss. 825, 78 So. 777; James v. Woods, 65 Miss. 528, 5 So. 106; Boyd v. Quinn (Miss.), 22 So. 802; Bowles v. Brevard-Woods Stave Co., 107 Miss. 289, 65 So. 273; Bean v. Pickle, 111 Miss. 684, 72 So. 4; Anthony v. Bassett, 172 Miss. 206, 159 So. 854; Scudder-Gales Grocery Co. v. Rienzi Grocery Co., 119 Miss. 423, 81 So. 122; Code of 1930, Sec. 74.
The question for decision in this case is whether an appeal in a civil case can be effectuated from a justice of the peace court to the circuit court by delivery to the justice of the peace of a personal check of one of the defendants against whom a personal judgment had been rendered in the justice court. Appellant obtained in a justice court a personal judgment against George Guess and Mrs. George Guess and Claude Wilkes for $167.16. The circuit court on appeal to it rendered judgment for appellees. It is admitted no appeal bond was given but that in lieu thereof a personal check of Wilkes for $250 was delivered the justice of the peace, although the transcript of the record of the justice of the peace makes no reference whatever to it. This check was cashed by the circuit clerk after the transcript of the record was filed with him, and the clerk, after rendition of the judgment by the circuit court, paid the money to appellee, Wilkes. Consequently, neither the check nor the money is now available.
It is the contention of appellant that the attempted appeal was a nullity and that the circuit court had no jurisdiction to hear this case on its merits and should have dismissed the appeal, and that, therefore, we have no jurisdiction and should here enter such dismissal.
The requirements for appeals are purely statutory. 4 C.J.S., Appeal and Error, Sec. 425, p. 881. The only statute in Mississippi prescribing the conditions of the appeal in this case is Section 1198, Code of 1942, reading, in the parts pertinent here, "Either party may appeal to the circuit court of the county from the judgment of any justice of the peace if appeal be demanded and bond given within ten days after the rendition of the judgment. The party taking the appeal shall give bond, with a sufficient surety, to be approved by said justice, payable to the opposite party, in the penalty of double the amount of the judgment, or double the value of the property involved, and all costs accrued and likely to accrue in the case, and in no case to be less than one hundred dollars, conditioned for the payment of such judgment as the circuit court may render against him . . ."
The requirement as to bond is mandatory and jurisdictional. Humphreys v. McFarland (Miss.), 48 So. 182, and Johnson v. Marshall (Miss.), 48 So. 182, neither reported in the State Reports; Woods v. Davidson, 57 Miss. 206; Carney v. Moore, 130 Miss. 658, 94 So. 890; Lamas v. Renaldo, 151 Miss. 325, 117 So. 331. The appeal was a nullity. The circuit court had no jurisdiction.
But it is contended by appellees that the circuit court could have permitted the filing of a bond had motion been made to that effect. Section 1208, Code 1942. The provisions of that section apply where a defective or insufficient bond has been filed, or properly tendered, but not to cases where there has been no attempt to give a bond. If the section applied in the latter case, the appeal could be successfully prosecuted for any reason, or upon any kind of pretext, or, for that matter, without reason or pretext.
It is also contended by appellees that appellant is estopped to raise the question here because the record does not show that it was raised below. Appellant replies that it did raise it by oral motion to dismiss, which was overruled. However, the record does not show such motion and we must consider the question as though not raised in the lower court. The question, being jurisdictional, can be raised here for the first time. Carney v. Moore, supra; Gardner et al. v. Cade, 190 Miss. 505, 200 So. 720.
The circuit court had no jurisdiction to hear this case on its merits and should have dismissed the appeal; consequently, we have no such jurisdiction, and can only enter here the judgment which the circuit court should have rendered, i.e., dismiss the appeal to the circuit court, leaving the judgment of the justice of the peace in full force and effect.
So ordered.
DISSENTING OPINION.
It is true that the giving of the appeal bond within the time prescribed by the statute is jurisdictional, and our court has so held as pointed out in the controlling opinion. It never has held, however, and I do not think it ought to be, that where there is an honest attempt within the time limit to give the required bond, failure so to do is jurisdictional. In my opinion, our court has held exactly to the contrary on principle, although the facts were different from the facts of this case. In Keys v. Borden, 178 Miss. 173, 171 So. 887, the appeal bond was required to be in the penalty of $100, instead the bond given and approved was in the penalty of only $30. The court held that the approval of the defective bond and the transfer of the case to the appellate court gave that court as full jurisdiction as it would have had with the proper bond; that, therefore, the bond was amendable.
In Barrett v. Pickett, 117 Miss. 825, 78 So. 777, the appeal bond from a judgment of the justice of the peace court was blank as to the penalty. The court held that it could be amended by inserting the proper penalty, and also in Denton v. Denton, 77 Miss. 375, 27 So. 383, and Thorsen v. Illinois Cent. R. Co., 112 Miss. 139, 72 So. 879. In James v. Woods, 65 Miss. 528, 5 So. 106, the appeal bond was filed before the case was tried in the justice of the peace court. On appeal to the Supreme Court, that court said, in part, "The bond had the effect which one regularly executed and approved would have had, and it was available to protect appellee for all the purposes contemplated by law in such case."
In the present case, the justice of the peace and the appellant decided that $250 in cash was sufficient to answer the purposes of a regular appeal bond. Accordingly, the appellant gave his check on his bank, presumably payable to the justice of the peace, for that amount. The check was cashed by the circuit clerk. In other words, instead of signing the bond for the required amount, he signed a check which accomplished in full the same purpose. In such a case the adversary party is not prejudiced; the money answers the same purpose as the required bond. And if he conceives that it will not answer the same purpose, on motion the court should order the appellant to give the proper bond. In the present case, the record is entirely silent as to any objection to this bond in the circuit court or in this court until raised by the appellees' brief.
It is true that the record does not show when the check was given. The presumption, however, is that it was given within the time limited for appeal.