Opinion
No. 29882.
March 14, 1932.
1. COURTS.
All appeals from county court to circuit court must be taken within ten days from entry of final judgment or extended time.
2. FORCIBLE ENTRY AND DETAINER.
Appeal to circuit court taken within ten days from county court judgment in unlawful entry and detainer action held timely, five-day statute being inapplicable (Code 1930, section 63).
3. SCHOOLS AND SCHOOL DISTRICTS.
Majority of trustees is required to sue in behalf of school or for possession of school property.
APPEAL from circuit court of Yazoo county. HON.W.H. POTTER, Judge.
Franklin, Easterling Rosenthal, of Jackson, for appellant.
Appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law. Such appeal shall operate as supersedeas only when such would be applicable in the case of appeals from the circuit court to the supreme court. Appeals shall be considered solely upon the record as made in the county court. Appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, provided, however, that the county judge may within the said ten days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty days from the date of the said final judgment.
Sec. 704, Code of 1930.
It was the purpose of the legislature in creating the county court to furnish an efficient, economical and expeditious tribunal for the settlement of litigation involving small amounts, and to give a speedier final termination to cases of misdemeanor and petty offenses. It was therefore required, among other provisions to that end, that appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, and that such appeals should be considered solely upon the record as made in the county court.
Federal Credit Company v. Zepernick Grocery Co., 120 So. 173.
The effect of chapter 131, Laws of 1926, section 693, Code of 1930, is to abolish special eminent domain courts in counties having county courts, and to vest the jurisdiction thereof in the county court. Section 704, Code of 1930, provides for appeals from the county court to the circuit court, and the procedure to be followed by the circuit court in the trial thereof. This statute includes all appeals from the county court to the circuit court, and consequently governs here.
City of Hattiesburg v. Prichette, 134 So. 140.
Inasmuch as the provisions of section 704 of the Code of 1930 are clear, positive, all embracing, dealing with one subject-matter, without any exceptions, thereto, it will not be set aside by an interrelated statute, dealing with appeals from unlawful entry and detainer courts from justices of the peace.
Stingily v. City of Jackson, 104 So. 465, 140 Miss. 19; Swift Company v. Soanes, 107 So. 881, 142 Miss. 660; Ascher and Baxter v. Moyse, 59 So. 229, 101 Miss. 36; State v. Wyoming Mfg. Co., 103 So. 11, 138 Miss. 249.
A board of trustees must act by a majority.
Ball v. Jones, 102 So. 563, 137 Miss. 500.
J.G. Holmes, of Yazoo City, for appellees.
The entire right is statutory, and only those coming within the statute can avail themselves of the action. By the express provisions of the statute those who do come within its terms are entitled to the "summary remedy" prescribed for unlawful entry and detainer proceedings. Since the entire right and proceedings are statutory, and since the remedy provided by statute is summary, then the "summary remedy" must be preserved, or the remedy intended to be afforded by the statutes is destroyed, because there is no right or remedy save that afforded by the statutes. Since the only remedy prescribed by statute is a summary remedy, then this summary remedy must be preserved in counties having a county court, or else there is no remedy at all, since the only remedy afforded by the statute is a summary remedy.
If it be said that such cases are to be tried in the county court only in term time as other cases are tried, then the summary remedy which is prescribed by statute is destroyed.
Section 63 of the Code of 1930, being a special statute governing appeals to the circuit court in unlawful entry and detainer proceedings requires such appeal to be taken within five days after the rendition of the judgments.
Section 63 of the Code of 1930, is applicable in appeals from the county court in such cases, for two reasons, first because it is a special statute manifestly intended by the legislature to govern the time of appeals in all unlawful entry and detainer proceedings and second, because by the very terms of the County Court Act as set forth in section 696 of the Code of 1930, it is provided that proceedings which, if there were no county court, would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed as if the matter were in said justice court, general, or special.
Unless there is something in the county court act which strikes down section 63 of the Code of 1930, it must follow that this special statute governs the time for appeals in all unlawful entry and detainer cases.
Simpson v. Boykin, 118 Miss. 701.
If the contention of the appellant is to be upheld the situation would exist, where in counties having county courts, appeals would have to be perfected within ten days, whereas in counties not having county courts, the speedier remedy would be afforded, and the appeal would have to be perfected in five days. Certainly, it was never the intention of the legislature that any such lack of uniformity in the law should exist.
The language of the County Court Act preserves the provisions of this special statute fixing five days for appeals in unlawful entry and detainer cases.
Section 696, Code of 1930.
Appellees, asserting themselves to be the trustees of a consolidated school, instituted in the county court an action of unlawful entry and detainer against appellant, for the possession of certain school property. Judgment was entered by the county court in favor of appellees on August 26, 1931. On September 3, 1931, appellant filed his appeal bond, all in due form and manner, for an appeal to the circuit court. The county court declined to act upon said bond, however, on the ground that the said appeal bond, although filed within the ten days required generally in respect to appeals from the county court, was not presented within the five days prescribed by section 63, Code of 1930, for appeals from a special court of unlawful entry and detainer. Appellant thereupon at once applied to the circuit judge for a writ of certiorari, praying that the county court be required to send up the entire record, including the court reporter's transcript of the evidence. The writ was issued, and the record was transmitted to, and filed in, the circuit court.
In the circuit court a motion was made to strike the court reporter's transcript on the ground that no appeal had been taken in the time required by law, and that in consequence this transcript was no proper part of the record on certiorari. Federal Credit Co. v. Zepernick Grocery, 153 Miss. 494, 121 So. 114; Id., 153 Miss. 489, 120 So. 173. The court sustained the motion, and thereupon affirmed the judgment of the county court.
We have recently had occasion to review the subject of appeals from the county court and have held that "all appeals from the county court to the circuit court . . . must be taken within ten days from the date of the entry of the final judgment, or such extended time as the county judge may grant." Mississippi State Highway Department v. Haines (Miss.), 139 So. 168, 171. The appeal in this case was therefore taken in time and the court erred in striking the court reporter's transcript.
It appears probable from this record that two of the nominal trustees who instituted this action were not trustees. A majority of trustees is required to prosecute an action in behalf of the school or for the possession of school property. Ball v. Jones, 137 Miss. 500, 102 So. 563. When the case reaches the circuit court under the mandate from this court, if the circuit court finds that the case has not been and is not being prosecuted by a majority of the legal trustees of the said school, the circuit court will reverse the judgment of the county court and dismiss the case.
Reversed and remanded.