Opinion
No. 32258.
May 18, 1936. Suggestion of Error Overruled June 1, 1936.
1. JUSTICES OF THE PEACE.
Justice of the peace had authority to set aside his order dismissing action for want of prosecution during same session of court when plaintiff made appearance and showed good grounds for vacating order before entry thereof on docket.
2. JUSTICES OF THE PEACE.
Court of justice of the peace being one of general jurisdiction in action for two hundred dollar damages, every presumption is in favor of validity of its judgment, including presumption that it acted within proper time in vacating order dismissing action for want of prosecution.
3. JUSTICES OF THE PEACE.
Entry of order, fixing times and places for holding justice of the peace courts, on justice's docket is preferable, but not mandatory, and exclusive method of fixing days for trials of civil cases; Legislature having prescribed no particular means of doing so.
4. JUSTICES OF THE PEACE.
Judgment of justice of the peace for plaintiff held not invalid because of justice's failure to enter order, fixing times for holding courts to try civil cases, on his docket, in absence of record showing that day on which judgment was rendered was not one of days of court's regular term.
APPEAL from circuit court of Yalobusha county. HON. JOHN M. KUYKENDALL, Judge.
Osborn Lott, of Greenwood, for appellant.
The record does not show that the judgment of the justice of the peace was, or was not, rendered at a regular court day.
Justice of the peace courts are courts of record, and of general jurisdiction, and every presumption is in favor of the validity of their judgments.
Brian v. Davidson, 25 Miss. 213; Stevens v. Mangum, 27 Miss. 481; Rice v. Locke, 59 Miss. 189; Swain, Admx. v. Gilder, 61 Miss. 667; Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Vicksburg Grocery Co. v. Brennan, 20 So. 845; McIntosh v. Munson Road Machinery Co., 145 So. 731, 167 Miss. 546.
The justice of the peace judgment is not void because of any showing that the justice had no regular days established for the holding of civil cases.
35 C.J. 710, sec. 372.
The particular entries to be made upon the docket of a justice of the peace is a matter regulated by statute. The only statutes in Mississippi relating to this matter are Sections 2074 and 2075, Code of 1930, which statutes require every justice of the peace to keep a well bound book styled "Docket," and which statutes stipulate what the docket shall contain. These statutes go into detail in listing the matters that the docket must contain, specifically listing sixteen things which must be entered therein. The time and place of holding his regular terms of court are not among the items listed in the statutes. By familiar rules of statutory construction long prevailing in this state, the presumption must be indulged in that Legislature did not intend that the omitted items should be listed in the docket.
We think the conclusion inescapable that the judgment of a justice of the peace is deemed valid in the absence of an affirmative showing that the justice rendering the judgment had no regular terms of court, or that the particular judgment was not rendered at a regular term. The justice is not required by statute to show upon his docket the time or place of holding his regular terms of court, and the failure of the docket to show such information is far from constituting affirmative proof that he had no such terms. There being no affirmative showing to the contrary, the presumption in favor of the validity of judgments rendered by courts of record and of general jurisdiction must prevail.
The justice's judgment is not void because of the granting of any new trial.
It has never been held in this state that a justice of peace cannot set aside a default judgment, or a judgment of dismissal, on the same day and during the same term at which it was rendered. And most certainly it has never been held in this state that a justice of the peace lacks the power to set aside a judgment of dismissal before such judgment had been entered upon his docket.
Mutual Health Benefit Association v. Cranford, 156 So. 876; Bronson v. Schulter, 104 U.S. 410, 26 L.Ed. 797; 15 R.C.L. 688, sec. 140, and 690, sec. 143; 35 C.J. 642, sec. 259; Board of Supervisors, Forrest County v. Steele, 124 Miss. 340, 86 So. 810. Stone Stone, of Coffeeville, for appellee.
While no justice of the peace has a right to grant a new trial but even granting for the sake of the argument that the same was done, the judgment here comes under the condemnation of the statute, which is plain that civil cases have to be returnable to a regular day for the trial of civil cases, the one fixed by the court. The judgment in this cause, and it is based on the record sent up, shows there was no fixing of a date on the docket of the court as required by the law, no fixing of a regular date in each month for holding civil case trials, and, therefore, there is nothing on earth to save this judgment.
We will not cite authorities on the obvious holding of the courts and the uninterrupted holdings of the courts that a justice of the peace has no authority to grant a new trial.
As to the duties of the justice to appoint a date for holding court, we have the statute which is very plain, 2076 of the Code of 1930: "Justices of the peace shall hold regular terms of their courts, at such times as they may appoint . . . and all process shall be returnable, and all trials shall take place at such regular terms, except where it is otherwise provided."
Alabama Great Southern Railroad v. Dalton, 38 So. 285; Howell v. Kirsh, 152 Miss. 271.
In the case at bar it is agreed in this record that there was no order fixing a regular day of holding court, and so the first proceeding was void entirely as there was no day fixed and the trial was held by an arbitrary setting of the cause by the justice of the peace after pretending to grant a new trial. In the case at bar we respectfully submit that not having complied with the law by fixing a date in his docket and making an entry of it, and which is plainly shown by the agreement in this record, there never could be a valid setting of this case for trial except by agreement.
Appellant's decedent filed an action against appellee in the court of a justice of the peace for the recovery of damages in the sum of two hundred dollars. The case was set for trial by agreement of the parties on a day of a regular term of the justice court, to-wit, at 2 o'clock p.m., May 12, 1933. At that hour appellee, hereinafter to be called the defendant, and his attorney appeared and were ready for trial. The plaintiff in the action and his attorney had left their homes in ample time to reach the court at the hour mentioned, but because of a punctured automobile tire on the road, plaintiff was delayed in reaching the place of trial until 2:30 o'clock p.m. on said day.
About ten minutes past 2 o'clock, when plaintiff and his attorney had not yet arrived, the defendant moved for a dismissal of the action for want of prosecution, which motion was sustained, and the justice of the peace signed an order to that effect, and thereupon about 2:20 o'clock the defendant and his attorney left the court and went to the town of Grenada. About ten minutes thereafter, or about 2:30 o'clock p.m., as already mentioned, plaintiff and his attorney arrived and were then ready for trial, but were informed by the justice that an order of dismissal had a few minutes before been granted. When the accidental cause of the delay was explained to the justice, he stated his willingness to vacate the order, and hear the case, the session of the court not having adjourned; whereupon plaintiff's attorney immediately succeeded in reaching the attorney for the defendant at Grenada, eighteen miles distant, by telephone, explained the situation and requested the attorney for the defendant and his client to return, which request the defendant's attorney refused on the ground that the case had already been dismissed and that the court had no power to set aside or vacate that order. Upon this refusal, and in the same telephone conversation, plaintiff's attorney stated to the attorney for the defendant that the court, which was still in session, would be requested to vacate the order of dismissal and to set the case for trial at 2 p.m., June 6, 1933.
Upon a report to the court of this telephone conversation and the unsuccessful result thereof, the court sustained the motion of the plaintiff to recall or vacate the order of dismissal, and the case was set for trial for the hour and day last mentioned, to-wit, 2 p.m., June 6, 1933. On the latter day the attorney for the defendant appeared "for the sole purpose of asking for a dismissal of the suit on account of the judgment of dismissal entered May 12, 1933, and claiming that the attempted setting aside of this judgment on same day was unlawful." The court overruled the contention of defendant, whereupon defendant's counsel withdrew from the court; following which action the court heard the case on the merits and the evidence in support thereof and rendered final judgment for the plaintiff in the amount sued for.
Within the six months allowed by law, defendant presented his petition for a writ of certiorari upon the grounds (1) that the action of the justice of the peace in setting aside the order of dismissal made on May 12, 1933, was unauthorized and void, and on the further ground (2), that the day on which the case was heard on the merits and final judgment rendered by the justice of the peace, was not one of the days fixed by the justice in a manner provided by law for the trial of civil cases, which, if true, would render the judgment invalid. The petition for certiorari was granted and bond given. Upon the hearing thereof in the circuit court, the court adjudged that the judgment of the justice of the peace on June 6, 1933, was void, and the plaintiff was taxed with the costs.
On the first point, the defendant argues that since a justice of the peace has no power to grant a new trial, for like reason he has no authority to set aside an order of dismissal for want of prosecution, even though, as in this case, the court was still in the same session. It is enough to say in this case that although the order of dismissal had been written out and signed on May 12, 1933, it has not been entered on the docket, and, therefore, had not come into existence as a completed valid judgment when the plaintiff made his appearance and succeeded upon good grounds in getting the alleged judgment of dismissal vacated. Board of Supervisors v. Steele, 124 Miss. 340, 86 So. 810.
Upon the second point, there is nothing in this record to show that June 6, 1933, was not one of the days of a regular term of the court of the said justice of the peace. In a case such as this, the court of a justice of the peace is one of general jurisdiction, and every presumption is in favor of the validity of its judgments, including the presumption that the court acted at and within the proper time. 15 R.C.L., p. 876. Defendant's argument upon this point does not challenge the stated principle, but is based upon the fact that the docket used by the justice of the peace for 1933 does not show any entry of an order by the justice fixing the time or times for the holding of his courts; and defendant quotes and relies upon that part of the opinion of this court in McCormick Motor Car Co. v. McDonald, 153 Miss. 409, on page 414, 121 So. 121, 123, which appears as follows: "It will be seen from a careful reading of these statutes that the time and place of holding justice of the peace courts are not fixed by law, but by the justice of the peace, by an order entered upon his docket, it appearing that he has the power to fix the time and place of holding his court, and that he may change these times and places from time to time without giving notice to the public except by the docket entry of time and place of holding such court."
It is to be admitted that the quoted language is sufficiently broad to have led counsel and the trial court to the conclusion that the method stated in that quotation is the only manner by which a justice of the peace may legally fix the time and places for the holding of his courts; but with equal frankness, it must be admitted that the quoted language was discussion and not decision, Crawford v. City of Meridian (Miss.), 165 So. 612, or that, at most, it was used in a directory rather than in a mandatory sense. What the court had in mind is the better and the customary way, not a mandatory or jurisdictional method. Instead of entries upon their dockets, some justices fix the time and places of their courts by publication in newspapers, some of them by public notice posted at a suitable place or places in their district, or at the county courthouse. So far as disclosed by this record, the justice of the peace in this case may have used some such other method; and since the Legislature had not prescribed a particular means as mandatory, we can do no more here than express our opinion as to the preferable method, which was done in the language above quoted; and we must at once disclaim the authority to make mandatory and exclusive the preferred method so expressed. That authority belongs alone to the legislative branch of the government, and does not rest with us.
It follows from what has been said that no invalidity is shown in the judgment of the justice of the peace, and it should have been affirmed by the circuit court; and the judgment which should have been rendered, will be rendered here.
Reversed, and judgment here for appellant.