Summary
In Keys v. Borden, 178 Miss. 173, 171 So. 887, the appeal bond was required to be in the penalty of $100, instead the bond given and approved was in the penalty of only $30.
Summary of this case from J. R. Watkins Co. v. GuessOpinion
No. 32512.
January 18, 1937. Suggestion of Error Overruled March 1, 1937.
JUSTICES OF THE PEACE.
Where bond on appeal to county court from justice court was approved, although it was for a sum less than statutory amount, and case was transferred to county court, appeal was not void but only defective, and county court had jurisdiction to enter nonsuit on appellant's motion which prevented justice court judgment from having effect of a final adjudication (Code 1930, secs. 64, 67, 74, 594, 705).
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Barnett, Jones Barnett, and John E. Stone, all of Jackson, and Bidwell Adam, of Gulfport, for appellant.
A voluntary non-suit, by order of county court or circuit court, on motion of the plaintiff, dismissing case on appeal from a justice of the peace court, may be granted at any time before the jury retires to consider its verdict in the same manner and with the same effect as in an original suit.
Sections 64 and 67, Code of 1930; Telephone Co. v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newell, 61 Miss. 437; Railroad Co. v. Andrews, 61 Miss. 474.
The effect of the supersedeas is to prevent the use of the judgment during the time it is superseded. The proceeding lies dormant; no action can be taken which depends upon the judgment for its validity.
Land Co. v. Robertson, 125 Miss. 337, 87 So. 669.
When the case goes to the circuit court, or county court, on appeal from a justice of the peace, under the statute authorizing appeals operating as a supersedeas of execution on the judgment and providing that the case shall be tried anew, the circuit court or the county court, to which the appeal has been taken, has original jurisdiction. The jurisdiction to try causes de novo and to decide them on the law and the evidence according to the right of the cases, independent of the rulings of the lower court, is original and not appellate.
In re Brunette, 85 P. 375, 73 Kan. 609; Ex parte Henderson, 6 Fla. 279; Section 705, Code of 1930; 18 C.J. 1170, sec. 59; Dreyfus v. Mayer, 69 Miss. 282, 12 So. 267.
Where appeal from the justice's court is perfected by defendant so as to remove the cause into the county court for trial de novo, the appeal vacates the justice's judgment so that a dismissal of the action does not reinstate or revive the judgment appealed from; and where an appeal is perfected by defendant from a judgment in a justice's court and the cause is removed into the county court for trial de novo, appellant stands as a party defendant in the county court and the case stands as though it had been originally brought in the court.
Telegraph Co. v. McKee Bros., 135 S.W., 658, 14 Dec. Dig. 2d 367; Rev. St. 1909, sec. 1980; Leonard v. Security Bldg. Co., 162 S.W. 685, 179 Mo. App. 480, 14 Dec. Dig. 2d 367; Sections 594, 595, Code of 1930.
Plaintiff may take a nonsuit at any time before trial when his case stands for trial de novo, even upon a reversal and remand for a new trial.
18 C.J. 1158, sec. 30; Carden v. Railroad Co., 11 Ala. App. 525, 66 So. 921; Moyett v. Knott, 16 Wyo. 108, 92 P. 240.
When plaintiff appeals to the circuit court from a justice's court, and then exercises his right to dismiss the cause or take a nonsuit, the case is taken out of court and the judgment of the justice is thereby vacated.
Leonard v. Security Bldg. Co., 175 Mo. App. 480, 162 S.W. 685; Eckard v. Superior Court, 195 Cal. 473, 234 P. 80; Hartsock v. Insurance Co., 223 Ill. App. 433.
A plaintiff may, upon trial, submit to a nonsuit or voluntary discontinuance before trial in a suit brought into the circuit court by appeal from a justice.
Castator v. Royes Blandford, 221 Mich. 591, 192 N.W. 696; Garfield v. Steel Corp., 223 Mich. 694, 194 N.W. 526.
In a trial de novo in the circuit court of the case appealed from the justice court, the judgment of the justice is not reversed or affirmed; but a new, distinct and independent judgment, as may be required by the merits shown on the trial is rendered by the circuit court.
Abraham v. Alford, 64 Ala. 281; Horsh v. Heflin, 76 Ala. 499; Lucedale Commercial Co. v. Strength, 163 Miss. 646, 141 So. 769.
We submit that a judgment or order of any court of record is presumed to be correct and that the court rendering said judgment is presumed to have jurisdiction of the subject matter.
Duncan v. McNeil, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Canton v. Cooper, 39 Miss. 784; 18 C.J. 1172; Moore-Mansfield Construction Co. v. Marion, etc., Traction Co., 52 Ind. App. 548, 101 N.E. 15; Horne v. Mooreland, 153 So. 668; Stalling v. Sorrells, 134 Miss. 383, 100 So. 10; Federal Credit Co. v. Rogers, 148 So. 353.
An appeal bond in a penalty less than the minimum sum required by law is not void but may be amended. The jurisdiction of the court does not depend on the correctness of the appeal bond.
Section 74, Code of 1930; Gaddis v. Palmer, 60 Miss. 758; James v. Woods, 65 Miss. 528, 5 So. 106; Denton v. Denton, 77 Miss. 375, 27 So. 383; Thorsen v. I.C.R.R. Co., 112 Miss. 139, 72 So. 879; DeLaval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522; Barrett v. Pickett, 117 Miss. 825, 78 So. 777; Wallace v. State, 149 Miss. 198, 115 So. 342; Williams v. Johnson, 167 So. 639.
According to the theory of appellees, an appeal bond in a penalty less than the minimum sum required by law is void, a nullity, with the effect that an appeal was really never had and jurisdiction never obtained. That theory, however, is clearly contradictory to the law as decided by this court. After the appeal bond was approved by the justice and the transcript of the record transmitted by the justice to the county court, the county court had full jurisdiction of the case.
Watkins Eager, of Jackson, and S.C. Mize, of Gulfport, for appellees.
It was frankly conceded in the lower court, and likewise conceded here, that where a plaintiff has properly appealed to the county court from an adverse judgment that a nonsuit may there be taken and another suit later filed on the same cause of action. This court has several years ago decided the exact question.
Lucedale Commercial Co. v. Strength, 163 Miss. 646, 141 So. 769.
Neither do appellees contend, in the second place, that strictly speaking the appeal bond where for an insufficient amount is void, but as long since said by this court it is simply defective and may by timely and proper amendment be perfected.
Denton v. Denton, 77 Miss. 375, 27 So. 383.
The two propositions involved in this appeal so far as these appellees are concerned are as follows:
(1) Where plaintiff attempts to appeal from an adverse judgment rendered by a justice of the peace, and furnishes a purported appeal bond in the penalty of only thirty dollars, whereas the statute requires a minimum bond of one hundred dollars, and upon the record reaching the county court that court enters an order of dismissal, and no leave or permission ever having been requested by plaintiff to amend or perfect the bond, does such dismissal operate as a revival of the judgment of the justice of the peace, and such judgment constitute res adjudicata where properly pleaded on a subsequent suit with respect to the same parties and cause of action?
(2) And, under such circumstances where in the second suit the servant of the defendant in the original suit is for the first time named as an additional defendant, and where the original cause of action was predicated solely on the alleged negligence of the said servant within the scope of the original defendant's employment, is the original judgment res adjudicata, and may the servant in the second suit plead such judgment by way of estoppel?
We respectfully submit that both of these questions are answered in the affirmative.
Section 64, Mississippi Code of 1930, provides the exclusive method for appeal from a judgment of the justice of the peace court, and stipulates that the appeal bond "in no case to be less than one hundred dollars", and "the appeal, when demanded and bond given, shall operate as a supersedeas of execution on such judgment."
Section 74, Code of 1930.
Where a proper appeal bond is executed the effect of the appeal is to vacate and supersede the judgment of the justice of the peace court. It is appellees' contention that where a defective appeal bond, to-wit, one in a wholly insufficient amount, is given and approved by the justice of the peace that the effect of said appeal at best is to merely suspend the operation of the judgment of the justice of the peace until and unless said bond is amended and perfected as provision by section 74; and if the appellate court enters an order of dismissal, and without the bond being amended, or leave to amend requested by the appellee, then upon the entry of the dismissal order the judgment of the justice of the peace is revived and reinstated.
Howell v. Miller, 151 Miss. 372, 118 So. 178; DeLaval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522.
It affirmatively appears from the special pleas of both appellees that the dismissal order of the county court was entered upon the convening of said court at the regular January, 1936 term, and on January 17, 1936, and that the thirty dollars appeal bond "was never sought to be amended, nor was any other bond attempted to be filed in said case." We respectfully submit that the purpose of the statute is to afford the appealing party an opportunity to amend a defective or insufficient bond, or execute a new bond in conformity to the statute where the justice of the peace has approved a bond which, in fact, is insufficient or defective.
On the other hand, we submit with equal earnestness that because the statute has liberally extended this privilege it cannot be distorted so as to afford the aggrieved party an opportunity to vacate and supersede forever the adverse judgment appealed from by doing nothing more than furnishing a wholly insufficient and defective bond. The defective bond may have the effect of suspending the operation of the judgment of the justice of the peace, but until and unless it is amended, or a new one in accordance with the statute substituted in its place and approved by the appellate court, then the judgment of the justice of the peace is merely suspended and upon a dismissal of the action by the appellate court under such circumstances the judgment of the justice of the peace court is revived and reinstated with full force and effect.
Gaddis v. Palmer, 60 Miss. 758; James v. Woods, 65 Miss. 528, 5 So. 106; Thorsen v. I.C.R.R. Co., 112 Miss. 139, 72 So. 879; Barrett v. Pickett, 117 Miss. 825, 78 So. 777; Wallace v. State, 149 Miss. 198, 115 So. 342; Williams v. Johnson, 167 So. 639; Franklin Fire Ins. Co. v. Shadid, 45 S.W.2d 769.
Appellant brought this action in the circuit court of Harrison county against appellees, P.L. Borden, doing business as Coca-Cola Bottling Company, and John Chapman and Joe Martino, to recover damages for a personal injury received by her as the result of a collision between an automobile owned and driven by Martino, in which she was a passenger, and a delivery truck of Borden's, driven by his servant Chapman.
In addition to pleas of the general issue, the defendants Borden and Chapman pleaded in abatement and also res judicata. Appellant demurred to these special pleas. The demurrer was sustained as to the pleas in abatement and overruled as to the pleas of res judicata. Appellant declining to plead further, final judgment was entered dismissing the cause. From that judgment appellant prosecutes this appeal.
Appellant made the following case by her declaration: She was a passenger in an automobile owned and being driven by defendant Martino. The defendant Chapman was driving an automobile delivery truck in the service of his master, the defendant Borden. There was a rear collision between the truck and the automobile in which appellant was a passenger, resulting in serious personal injuries to her. The proximate cause of the collision and injury was the concurrent negligence of Martino and Chapman.
The pleas of res judicata set up substantially the following facts: Appellant first sued Borden alone for the injuries. This suit was brought in a court of a justice of the peace of Hinds county; the amount sued for was $200; there was a trial and judgment in favor of Borden, from which appellant appealed to the county court of Hinds county. She gave an appeal bond in the sum of only $30. The justice of the peace who tried the cause approved the bond and certified the record of the case up to the county court. After the cause reached the county court, on appellant's motion a nonsuit was entered — not a dismissal of the appeal — and the costs were adjudged against appellant, which she paid.
The position of Borden and Chapman is that thereby there was a final adjudication in their favor of any liability on their part for appellant's injuries. Although Chapman was not a party to those proceedings, he claimed the same rights thereunder as Borden, whom he was serving at the time of the injury. He makes this claim under the rule, held by some courts, that, where the liability of the master is based solely on the negligence of the servant, under the doctrine of respondeat superior a judgment on the merits relieving the master of liability is a bar to any suit against the servant for the same negligent act. We do not reach this question because the view we take renders it unnecessary.
We are of the opinion that the court erred in overruling the appellant's demurrer to the pleas of res judicata. In doing so the court necessarily held that the county court was without jurisdiction to enter a nonsuit, and that therefore what was done amounted to a dismissal of the appeal instead of a nonsuit, leaving standing the judgment of the justice of the peace.
Section 64, in connection with section 705, Code of 1930, provides how appeals shall be taken from the courts of justices of the peace to the county courts. The minimum appeal bond is fixed at $100. As stated, the one given by appellant was for only $30. Section 67 of the Code provides that appeals from the judgments of justices of the peace shall be tried anew in a summary way without pleadings in writing. Section 74, Code of 1930, provides as follows: "In all appeals and in proceedings of certiorari to the circuit court, the said court, on motion of the appellee or obligee, may inquire into the sufficiency of the amount of the bond, and of the the security thereon, and may at any time require a new bond, or additional security, on pain of dismissal; and if any bond be defective, the principal therein may give a new one, which shall have the same effect as if given originally."
Section 594, Code of 1930, provides that, if plaintiff desires to suffer a nonsuit, he may do so at any time before the jury retires to consider its verdict.
The appeal to the county court was not void; it was only defective. Under section 74 of the Code the bond was amendable. Gaddis v. Palmer, 60 Miss. 758; James v. Woods, 65 Miss. 528, 5 So. 106; Denton v. Denton, 77 Miss. 375, 27 So. 383; Thorsen v. Illinois C.R. Co., 112 Miss. 139, 72 So. 879; De Laval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522; Barrett v. Pickett, 117 Miss. 825, 78 So. 777; Wallace v. State, 149 Miss. 198, 115 So. 342; Williams v. Johnson, 175 Miss. 419, 167 So. 639.
The argument to sustain the action of the court, in its last analysis, means that, if the bond had been properly amended, a valid nonsuit could have followed, otherwise it could not; that therefore what was done was nothing more than a dismissal of the appeal, leaving the judgment appealed from undisturbed. What was said by the court in Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, with respect to the jurisdiction of the circuit courts in cases appealed from the courts of the justices of the peace, under section 705 applies equally to the county courts. The court said that the jurisdiction acquired was not in any proper sense appellate; that the authority of the circuit court was not confined to a review, and an affirmance or a reversal of the judgment appealed from, but that the case had to be tried anew as if it had been originally instituted in the circuit court, "with the single exception that written pleadings are not required;" that the court had the right "to consider such cases de novo on appeal, and decide them according to the law and the evidence, independent of the rulings and judgment of the lower court"; and that such jurisdiction was original and not appellate.
The approval of the defective bond and the transfer of the case to the county court gave that court as full jurisdiction as it would have had with a proper bond. If a nonsuit had not been taken, and the cause had been tried and final judgment rendered in the county court, without the bond being amended, as provided by section 74, Code of 1930, the judgment would have been valid, notwithstanding the defect in the bond. A contrary view would mean that the county court was powerless to move in the cause until a valid bond was given. We think that position is unsound and cannot be reconciled with the statutes and decisions of this court referred to. Under section 74 of the Code the defect in the bond is amendable on the motion of the "appellee or obligee." Suppose the appellee or obligee fails to make a motion inquiring into the sufficiency of the bond, would all the proceedings after that be void? We think not.
Reversed and remanded.