Summary
In Schwartz v. McKay, 184 Miss. 422, 185 So. 200 (1938), 184 Miss. 422, 185 So. 811 (1939), this Court held that if a circuit court wrongfully dismisses an appeal to it from the county court the appellant has not had his day in the circuit court which the statute contemplates.
Summary of this case from Fowler Butane Gas Co. v. ParishOpinion
No. 33447.
December 12, 1938. ON MOTION TO DISMISS.
1. CERTIORARI.
A writ of certiorari is one of the methods by which appellate jurisdiction is exercised.
2. APPEAL AND ERROR.
A case carried from a justice court to a county court by a writ of certiorari for purpose of reviewing a judgment is an "appeal" within statute providing that there shall be no appeal from circuit court to Supreme Court of any case which originated in a justice, municipal, or police court and was then appealed to county court and circuit court unless a constitutional question is necessarily involved, since a writ of certiorari is one of the methods by which appellate jurisdiction is exercised (Code 1930, section 705).
3. APPEAL AND ERROR.
Where a case has been properly appealed from a county court to a circuit court, that court should take jurisdiction and try case in manner provided by statute, and it is from judgment then rendered that statute forbids an appeal to the Supreme Court of a case originating in a justice, municipal, or police court and then appealed to county court and circuit court unless a constitutional question is involved (Code 1930, section 704, as amended; section 705).
4. APPEAL AND ERROR.
Where a circuit court wrongfully dismisses an appeal from a county court, the appellant has not had his day in the circuit court contemplated by statute providing that there shall be no appeal from circuit court to Supreme Court of any case which originated in a justice, municipal, or police court unless a constitutional question is involved, and hence statute does not bar him from appealing to the Supreme Court for correction of error (Code 1930, section 705).
5. APPEAL AND ERROR.
A motion to dismiss an appeal to the Supreme Court from the circuit court in a case which originated in justice court and was then appealed to county court and circuit court under statute on ground that no constitutional question was presented did not present question whether circuit court wrongfully dismissed appeal so that appellant had not had his day in the circuit court contemplated by statute (Code 1930, section 705).
ON MERITS. (Division A. Jan. 23, 1939.) [185 So. 811. No. 33447.]1. COURTS.
An application for appeal from county court to circuit court is merely formal, and circuit court clerk has no authority to refuse application, provided it is accompanied by a proper bond (Code 1930, section 704; Laws 1932, chapter 256).
2. APPEAL AND ERROR.
In absence of evidence to the contrary, the Supreme Court had to presume that appeal bond was tendered to circuit court clerk with request that it be approved for purpose of appeal to circuit court from county court (Code 1930, section 704; Laws 1932, chapter 256).
3. COURTS.
The tender of an appeal bond to circuit court clerk, who was also clerk of county court, was a request that bond be approved for purpose of appeal from county court to circuit court, and appeal was improperly dismissed for failure to make application for appeal (Code 1930, sections 26, 696, 704; Laws 1932, chapter 256).
APPEAL from the circuit court of Coahoma county; HON. WILLIAM A. ALCORN, JR., Judge.
Shed Hill Roberson, of Clarksdale, for appellee on motion.
The sole question to be determined on this motion is whether or not the facts in this case come within the rule as provided by Section 705, Code 1930, and the amendments thereto.
That part of Section 705 which is pertinent to this case is as follows: ". . . and provided further that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court."
It is our contention that the facts in this case cause it to come squarely within the rule as set out in this section.
The obvious purpose of Section 705, Code of 1930, is to limit cases which are small enough to originate in the justice of peace court to a trial in only three courts: justice of the peace courts, then county courts, and finally circuit courts; that is, of course, cases in which there is no constitutional question involved. In such cases, the circuit court is the final court to which an appeal may be had.
Worley v. Pappas, 135 So. 348; Hawkins v. Y.M.C.A., 135 So. 496; Williams v. State, 135 So. 199.
The certiorari, as used in this case, is allowed by Section 72, Code of 1930.
It is our interpretation of this statute to mean that if, for some reason, an appeal be not taken from a judgment of the justice of the peace court, then, within six months, an aggrieved party, in proper cases, may be granted a writ of certiorari; and that the circuit court (or county court in this instance) may do either one of three things: affirm the case as on appeal; reverse and enter up such judgment as the justice should have entered, if same be apparent from the record; or, as in the case at bar, reverse and try the cause de novo on its merits. Now if a proper appeal had been taken in the case at bar to the county court, what would have been the result? The case would have been tried de novo, which would have been the exact situation that did exist; it was tried de novo. Should the appellant in this case be allowed more privileges because he did not follow the usual method of appeal than an appellant who followed the proper method by filing an appeal bond within the proper time limit? Should a certiorari be granted more favor than an appeal? That it should is not our interpretation or construction of the meaning of the statutes and cases governing appeals and certiorari.
Board of Supervisors v. Melton, 86 So. 369, 123 Miss. 615; Shapleigh Hardware Co. v. Brumfield, 130 So. 98.
It is clearly seen from the facts in the case at bar that the sole and only purpose of the writ of certiorari filed in this case is to take the place of an ordinary appeal, and therefore in no manner can it be said that such a writ is the beginning of the action.
As to the second ground of the appellant's petition: that the constitutional question necessarily involved is the constitutionality of Section 705, Code of 1930, Section 705 of the Code of 1930 is the very statute under which we are proceeding, and the statute has been passed on by our court in a number of cases.
Worley v. Pappas, 161 Miss. 330, 135 So. 348; Hawkins v. Y.W.C.A., 135 So. 496.
The right of appeal from any court and to any court is regulated solely by statute, which must be followed in order to perfect any appeal.
Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801; McClanahan v. O'Donnell, 114 So. 336; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124; Jones v. Cashian, 133 Miss. 585, 98 So. 98.
When statutory procedure is not followed, the appeal will be dismissed on proper motion.
In the case at bar, the appellant had had two complete hearings on the merits, one in the justice court and one in the county court. He then attempted to appeal to the circuit court. The appellee moved the circuit court to dismiss the appeal because the proper procedure as set out by statute had not been complied with. The circuit court, after hearing the arguments of counsel on this motion, not once but twice, dismissed this appeal. We contend that this hearing on the motion constituted the last and final hearing on this case, and by the statute and the cases construing the statute, should not be reviewed by the Supreme Court.
John W. Crisler and J.H. O'Neal, both of Clarksdale, for appellant on motion.
We admit that no constitutional question is involved in this appeal. Our contention is that appellee's motion to dismiss the appeal should be overruled for the following two reasons: 1. This proceeding originated by certiorari in the county court, and section 705 of the Mississippi Code of 1930 denies an appeal to the Supreme Court only in cases which go by appeal from a justice court to the county court. 2. The question upon which the judgment was rendered adversely to the appellant in the circuit court, namely, whether appellant was required to file a written application or petition for an appeal with the clerk, was one of jurisdiction originating in the circuit court by that court's denying jurisdiction of the cause, and appellant is entitled to have the Supreme Court determine this question of jurisdiction.
While a certiorari partakes in some respects of the nature of an appeal, an appeal is not a certiorari and a certiorari is not an appeal.
11 C.J. 90 (11); Duggen v. McGruder, 1 Howard (Walker) 112, 12 Am. Dec. 527; Copeland v. Pate, 6 Howard 275; Holberg v. Town of Macon, 55 Miss. 112.
In Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173, the Supreme Court of Mississippi held that the office of certiorari was separate from that of appeal, and in Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 130 So. 98, the very case relied on and cited by appellee, this proposition is expressed reaffirmed.
By dismissing the appellant's appeal to the circuit court the circuit court refused to take jurisdiction of the cause, and appellant did not have a trial in said court. The circuit court simply refused to hear the case, which put into force the judgment of the county court. Even if this cause had originated in the justice court, as contended by appellee, the appellant would be entitled to a reversal and a mandate from this court entitling appellant to a hearing on the merits in the circuit court.
4 C.J., sec. 322, sec. 152d; In re Pillman Bros. Estate, 75 S.W.2d 582.
We come then to the final question: Was it necessary for appellant to file a written application or petition for an appeal from the county court to the circuit court? The statute does not say so. It merely says that "appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law." Section 704 of the 1930 Code. A verbal request is all that is necessary, even under this statute. A course of conduct may constitute an application. In this case we have the record here, it has been in the county court, in the circuit court, and appellant and his counsel have been present pursuing his appeal. Surely it cannot be seriously contended that he has not applied for the appeal.
But if an application in writing is required, we submit that it was filed in the formal notice to the stenographer filed with the clerk and in the stipulation of the appeal bond referring to the appeal. But no petition in writing for an appeal was necessary.
Section 696 of the Code of 1930.
The filing of a petition for appeal from the circuit court is expressly dispensed with by Section 26 of the Code of 1930, although Sections 20 and 21 expressly provide for the filing of such a petition. This procedure, by Section 696 of the Code, is made applicable to county courts.
John W. Crisler, and J.H. O'Neal, both of Clarksdale, for appellant.
The sole question involved in this appeal is: Was it necessary for appellant to file a written application for his appeal from the county court to the circuit court? The statute does not say so. It merely says that "appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law." Section 704 of the 1930 Code. A verbal request is all that is necessary under this statute. In fact, a course of conduct may constitute an application. In this case the record was in the circuit court, notice to the stenographer had been duly given, an appeal bond had been seasonably filed, a special provision in the appeal bond had set out the purposes of the bond, and appellant and his counsel were present in the circuit court pursuing the appeal. Surely it cannot be seriously contended that appellant had not applied for the appeal.
Sections 696 and 26, Code of 1930.
The purpose of the law was to make uniform in all courts the rules of procedure with reference to taking appeals and such matters. It is not necessary to file a written application for an appeal from a justice of the peace court. It is not necessary to file a written application for an appeal from an unlawful entry and detainer court. It is not necessary to file a written application for an appeal from the circuit court. It is not necessary to file a written application for an appeal from the chancery court. And the law never intended that there should be a different procedure for perfecting an appeal from the county court. To have provided otherwise would have been to create a snare of the most deceptive type.
As proof of the desire of our lawmakers to make procedure as nearly uniform as possible, it is provided in Section 474 of the Code of 1930 as follows: "All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever."
We respectfully submit that the judgment of the lower court should be reserved and the cause remanded for trial upon its merits. Shed Hill Roberson, of Clarksdale, for appellee.
There is only one question presented to the court in this appeal, viz.: Is it necessary, in order to perfect an appeal from the county court to the circuit court, for the appellant to make application therefor? The manner and terms of securing an appeal from a judgment of a county court to the circuit court are set out in Section 704, Code of 1930, and amendments thereto.
This court has uniformly held that appeals are not a matter of right, but are allowable only in cases provided by statute, and further that the statutory requirements for an appeal must be strictly complied with, and that failure to so comply results in dismissal of the purported appeal.
Bridges v. Bd. of Suprs., Clay County, 57 Miss. 252; Griffith's Mississippi Chancery Practice, sec. 680, page 795; Richards v. Smith, 37 Miss. 644; Porter v. Gresham, 4 Miss. 75; State v. Saw Mill Co., 119 Miss. 432, 81 So. 124; Nesbit v. Rodewald, 43 Miss. 304; Dismukes v. Stokes, 41 Miss. 430; Jones v. Cashin, 133 Miss. 585, 99 So. 98; Flowers v. Trotlas, 160 So. 581, 172 Miss. 305.
We are not unmindful of the fact that no written petition is necessary in order to secure an appeal to the Supreme Court, but the statute which obviates the necessity of such a petition, which first appeared in the Code of 1880, deals exclusively with appeals to the Supreme Court. It has no bearing on appeals to the circuit court. Appeals to the circuit court are governed by separate statutes from those which pertain to appeals to the Supreme Court.
Counsel contends that Section 26, Code 1930, which obviates the necessity of written petition to perfect an appeal to the Supreme Court, likewise obviates the necessity of petition or application to perfect appeals from the county court to the circuit court. The statute does not so state, but it does state as follows: "A written petition for an appeal shall not be necessary to its validity, but filing in the office of the clerk of the Supreme Court a transcript of the record of the case in which the appeal is taken shall confer jurisdiction on the Supreme Court to try and dispose of the case. . . ." This statute obviously applies, and applies only, to appeals to the Supreme Court.
Although we say, and the record so bears us out, that no application for appeal was made, either written or oral, either to the court, the judge or the clerk of the court, we further contend that a written application is necessary in order to perfect an appeal from the county court to the circuit court. A court can only speak through its minutes.
Eustis v. Holmes, 48 Miss. 34; Richards v. Smith, 37 Miss. 644.
We fail to see any ambiguous language in Section 704. It seems perfectly plain to us when the Legislature said "appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law . . .," the Legislature meant what they said — that one who appeals should make application and bond.
I do not think that it can seriously be contended that Section 704, Code 1930, does not apply to all cases appealed from the county court to the circuit court, except where it is expressly provided otherwise in Section 704, Code 1930.
Argued orally by Shed Hill Roberson, for appellee.
The appellee obtained a judgment in the court of a justice of the peace against his tenant, the appellant, for the possession of leased premises. The appellant then carried the case to the county court by means of a writ of certiorari, for which he executed a bond with O'Neal and Hopson as sureties thereon. The case was tried de novo in the county court and a judgment was rendered for the appellee for the possession of the property and against the appellant and the sureties on his bond for the sum of $200. The appellant then appealed to the circuit court, the sureties on his bond therefor being O'Neal and Hopson.
A motion was there made by the appellee to dismiss the appeal for the reasons:
"(1) That the appellant, Sam Schwartz, did not make application for appeal according to law.
"(2) The said bond in the penal sum of $400 with the said W.W. Hopson and M.B. O'Neal as sureties thereon is sufficient in law to perfect an appeal from the judgment of the County Court, attempted to be appealed from.
"(3) That since said money judgment for $200.00 was rendered as aforesaid against the said W.W. Hopson and M.B. O'Neal, neither they nor either of them could act as sureties on an appeal bond given in the appeal from the judgment rendered against them.
"Therefore, there are no sureties on said bond as required by law."
The appellant offered, but was not permitted, to file a new bond and the motion to dismiss the appeal was sustained, the order so doing reciting that: "the attempted appeal is hereby dismissed because Sam Schwartz did not make application for appeal as provided by Section 704 of the Code of 1930 and amendments thereto."
The appellant then brought the case to this Court. The appellee, in support of his motion to dismiss this appeal, says that no constitutional question is presented by the record, which the appellant admits to be true, and, therefore, the appeal will not lie under Section 705 of the Code of 1930. That section provides: "that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court." A writ of certiorari is one of the methods by which appellate jurisdiction is exercised. Shapleigh Hardware Company, Inc. v. Brumfield et al., 159 Miss. 175, 130 So. 98, 132 So. 93. Consequently a case carried from the court of a justice of the peace to a county court for the purpose of reviewing a judgment is an appeal within the meaning of this section.
When a case has been properly appealed from a county court to a circuit court, that court should take jurisdiction thereof and try it in the manner provided by Section 704, Code of 1930, and it is from judgments then rendered that this statute forbids appeals to the Supreme Court.
If a circuit court wrongfully dismisses an appeal to it from a county court, the appellant has not had his day in the former court which the statute contemplates. Consequently it does not bar him from appealing to this court for the correction of that error. Whether such an error was here committed is, of course, not presented by this motion.
Motion overruled.
This case was appealed from a county court to the court below. A motion there to dismiss the appeal was sustained, the order of dismissal reciting that, "the attempted appeal is hereby dismissed because Sam Schwartz did not make application for appeal as provided by Section 704, Code of 1930, and amendments thereto." That section provides that "Appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law. . . . Appeals from the county courts shall be taken and bond given within ten days from the date of the entry of the final judgment" etc. The amendment to this statute appearing in Chapter 256, Laws of 1932, makes no change in this provision thereof. This section does not provide when and to whom an application for an appeal shall be made, or by whom the bond shall be approved, except by the words, "according to law."
The bond for the appeal was filed with and approved by the circuit clerk, who is also the clerk of the county court, within ten days of the rendition of the judgment in the county court, and no contention is here made that he was not the proper officer for the discharge of that duty. The record does not disclose that any application for the appeal was made, unless the tender of the bond was such. The application for an appeal is merely formal, the clerk being without the right to refuse it, provided it is accompanied by a proper bond — the only substantial requirement of the statute. The statute does not require the application to be in writing but may be made verbally, and in the absence of record evidence to the contrary, we must presume that the bond was tendered with a request that it be approved for the purpose of an appeal. The tender of the bond was in fact such a request. Such is the provision of Section 26, Code of 1930, in appeals from the circuit court to the Supreme Court the spirit, if not the letter, of which should control here under Section 696, Code of 1930. Eustis v. Holmes, 48 Miss. 34, invoked by the appellee has no application here, for the statute there required a written petition for an appeal and Section 26, Code of 1930, had not then been enacted.
This appeal should not have been dismissed.
Reversed and remanded.