Opinion
No. 32267.
September 28, 1936.
1. COURTS.
Circuit court properly refused to entertain petition to transfer case which had been dismissed in county court by order from which no appeal had been taken (Code 1930, sec. 667).
2. DISMISSAL AND NONSUIT.
Order of dismissal in county court was presumed to be correct where there was nothing in record to show that it was absolutely void, since there is a general presumption in favor of correctness of judgments and presumption would obtain that dismissal was had because case was stale, in which event no notice was required (Code 1930, sec. 667).
APPEAL from circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
H.C. Stringer, of Jackson, for appellant.
We have examined every rule found in the statute and find not one which supports the action of the county court in dismissing appellant's case without notice to him, of its own motion, and taxing him with the cost. Section 664 (Pauper's Oath statute) might give trial courts this authority. Sction 667 (the stale case statute) is the next one making any kind of an approximate approach to such authority. But neither of these statutes have application here under the statement of facts in the record before this court. There is no authority under our statutes which support the county court's position.
The text book writers seem to agree that a trial court may dismiss civil suits of their own motion under certain conditions. If it appears to the court that it is without jurisdiction, or that the litigating parties are attempting to perpetrate a fraud upon the court, then the trial court may dismiss such a case of its own motion. But where issue has been joined and the court had full jurisdiction as in this case, trial courts are without authority to dismiss of their own motion.
18 C.J. 1206; 14 Cyc. 458.
This court has not been called upon to pass upon this question directly. But it would seem that from the rule set out in the following cases, this court would agree with our position.
Merchants Bank case, 108 Miss. 356, 66 So. 537; Mays v. Herbers, 94 Miss. 456, 48 So. 619.
The order entered by the county court is void and this court should so find.
Neilson v. Siess, 64 So. 128, 134 La. 327; O'Mara v. Newton, 156 Iowa 701.
Since the order entered into the county court is void and having no legal bearing on the status of our case there, appellant's case is now an active case on the calendar of the county court. Since this is true, the judicial facts in this record disclose that the county court refused to proceed further with appellant's case to final judgment, but treated the void order as a final judgment. It naturally follows that an unreasonable delay to final judgment had ripened when appellant filed his motion in the circuit court requesting that his case be transferred to that court.
The provisions of section 704, Code of 1930, justify our position. H.V. Watkins, Ralph B. Avery, and Barnett, Jones Barnett, all of Jackson, for appellees.
There was no delay of final judgment within the meaning of section 704 of the 1930 code.
It is important to consider in this case that the appeal is taken from the action of the circuit court in overruling the motion to transfer and this court is only concerned with the correctness of the order entered by the circuit court, and our inquiry is not directed toward the propriety of the county court's order dismissing the case without prejudice and the order refusing to reinstate the same.
While in some Mississippi cases a final judgment is referred to as being one which settles all of the points of a controversy upon the merits, it is perfectly obvious that "final judgment" as used in section 704 means a judgment from which an appeal can be taken.
Gill v. Jones, 57 Miss. 367; Mississippi Central R.R. Co. v. Brookhaven Lbr. Mfg. Co., 165 Miss. 820.
Instead of taking an appeal appellant erroneously attempted to have the same transferred from the county court. The circuit judge necessarily found that there was no delay in final judgment and that therefore he had no right to inquire into the method of dismissal by the county court and had no right to inquire into whether or not the county judge had abused the discretion vested in him, and there was nothing for the circuit judge to do except to refuse to allow the transfer of the case to the circuit court.
Appellant filed an action in the county court on a date not shown by the record. At the July, 1935, term of that court, the case was dismissed without prejudice at the cost of the plaintiff. At the November, 1935, term the plaintiff moved in the county court to reinstate the case, which motion was overruled. No appeal was taken from these orders of dismissal, as appellant could have done under Solomon v. Continental Baking Co. (Miss.), 165 So. 607; but, instead of appealing, plaintiff filed a petition in the circuit court on January 25, 1936, to transfer the case to that court. This petition was denied by the circuit court, and it is from the order of the circuit court denying the petition for transfer that the appeal now before us is taken.
In order that a petition to transfer a case may be entertained, there must be a pending case to be transferred. When the petition to transfer was filed in the circuit court, there was no pending case in the county court to be transferred — the case had already been dismissed in the county court by an order of dismissal from which no appeal had been taken. There is nothing in this record to show that the order of dismissal in the county court was absolutely void, as is contended by appellant. On the contrary, the essential facts not being shown, the general presumption in favor of the correctness of judgments must be indulged, and among these we may presume that the dismissal in the county court was because the case had become stale; and, when a case has become stale, no notice is required to be served when the court proceeds under the statute, section 667, Code 1930, to dismiss. Mississippi Cent. R. Co. v. Lumber Mfg. Co., 165 Miss. 820, 147 So. 814.
Affirmed.