Summary
In Worley v. Pappas, 161 Miss. 330, 332, 135 So. 348, 349 (1931), Justice Griffith for this Court again noted, "it has been settled from an early day in this state that appeals are not a matter of right, and are allowable only in cases provided for by statute."
Summary of this case from Marshall v. StateOpinion
No. 29450.
June 8, 1931. Suggestion of Error Overruled July 3, 1931.
1. APPEAL AND ERROR.
Appeals are not matter of right but allowable only in cases provided for by statute.
2. STATUTES. Term "suit or proceeding" within code provision limiting effect of repeal of statutes held not generally to extend to or include appeals ( Code 1930, sections 4, 705).
Code 1930, section 4, provides, in substance, that the repeal of any statutory provision "by this code shall not affect . . . any right accruing or accrued . . . or any suit or proceeding had or commenced in any civil case" previous to time of repeal.
3. APPEAL AND ERROR. Constitutional law. Statute limiting appeal from circuit court to Supreme Court in cases originating in justice of peace, municipal, or police court, held not invalid as denying equal protection of law ( Code 1930, section 705; Constitution United States Amendment 14).
Code 1930, section 705, governing appeals to the county court, provides in part 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 then 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 court or by a judge of the Supreme Court.
APPEAL from circuit court of Leflore county; HON. S.F. DAVIS, Judge.
Knox Lamb, of Greenwood, for appellant.
The appeal in this case was perfected under section 4 of the Code of 1930.
The case at bar was filed in the justice of the peace court in June, 1930, and was appealed and tried de novo in the county court in September, 1930, and was pending in the circuit court on November 1, 1930, when section 705 of the Code of 1930, supra, took effect. This section of the Code is not among the general laws of the state of Mississippi which were passed at the regular session of the Legislature of 1930 and took effect from and after their passage, but appears for the first time in the Code of 1930.
"The repeal of any statutory provision by this code shall not affect — any suit or proceeding had or commenced in any civil case — previous to the time when such repeal shall take place."
Section 4 of the Code of 1930; Wilkinson v. Hudson, 71 Miss. 130, 13 So. 866; 25 R.C.L., pp. 944-945; 25 R.C.L., p. 1077; 25 R.C.L. 1076.
The proviso of section 705 of the Code of 1930, supra, with reference to appeals is in violation of the provisions of the constitution of the United States and of the constitution of the state of Mississippi.
Section 24 of the Constitution of the state of Mississippi; Chicago, St. Louis New Orleans Railroad Co. v. Moss Co., 60 Miss. 641; Frank J. Bowman v. Deward A. Lewis et al., 101 U.S. 22, 25 L.Ed. 989.
On a former day the appeal in this case was dismissed under the concluding proviso of section 705, Code 1930. 134 So. 159. Appellant now contends that the right of appeal was preserved in this case by section 4, Code 1930, which provides that "The repeal of any statutory provisions by this code shall not affect . . . any right accruing or accrued . . . or any suit or proceeding had or commenced in any civil case . . . previous to the time when such repeal shall take place; but the proceedings in every such case shall be conformed, as far as practicable, to the provisions of this code." It was the purpose of section 4, aforesaid to preserve all accruing or accrued rights together with any suit theretofore commenced in any civil case to enforce those rights; but "it has been settled from an early day in this state that appeals are not a matter of right, and are allowable only in cases provided for by statute." Bridges v. Board of Supervisors of Clay County, 57 Miss. 252, 254. When the final judgment was rendered in the circuit court in this case the suit had been fully heard and was at an end. The words "suit or proceeding," although comprehensive in their import do not, in a statute such as said section 4, extend to or include appeals; see 7 Words and Phrases, First Series, p. 6770, except perhaps when the appeal is pending, which is not the case here, 4 Words and Phrases (Second Series), p. 776. See, also, 1 C.J., p. 949.
Appellant contends further that said proviso of section 705, Code 1930, is in violation of the equal protection clause of the Fourteenth Amendment of the Federal Constitution, because the said proviso allows a plaintiff, having a demand of less than two hundred dollars, to deprive a defendant of the right of final appeal to the Supreme Court by the option of instituting the suit in the justice court, whereas exactly the same suit between the same parties, if instituted originally in the county court, would permit an appeal to the Supreme Court. With more reason it could be argued that this section of the statute as it stood before the amendment carried by section 705, Code 1930, was violative of equality, because under the former section the plaintiff under the option to institute the action in the justice court would thereby set in motion a series of four hearings to which the defendant would be entitled, whereas if instituted in the county court there would be three, thus by the latter option depriving the defendant of the benefit of one of the additional hearings which he could have had under the first option. And with equal reason it could be argued that a statute which confers concurrent jurisdiction upon the circuit and chancery courts is in violation of constitutional equality because thereby it would make it optional with the complainant to choose the chancery forum, and thus deprive the defendant of the right of trial by jury.
The Fourteenth Amendment to the Federal Constitution protects against arbitrary and wholly unreasonable discriminations; but to the contrary of any such a result under the said proviso of section 705, the said proviso is based upon sound and practical reason and, in fact, upon the foundation of equality in that through its operation, under either option, three hearings are provided, not an unequal or an excessive number of hearings as existed before the said proviso was included in the statute.
Motion overruled.