Opinion
No. 30015.
May 16, 1932.
1. JUSTICES OF THE PEACE. On appeal from justice court, circuit court's jurisdiction is original, and case is tried de novo, though no written pleadings are required ( Code 1930, sections 64, 67).
Circuit court in such cases has no authority merely to review and affirm or reverse judgment of justice of peace, but case must be tried anew as if it were originally instituted in circuit court, with single exception that written pleadings are not required, and jurisdiction to consider such cases de novo on appeal and decide them according to law and evidence, independent of rulings and judgment of lower court, is original and not appellate.
2. JUSTICES OF THE PEACE.
Justice court's judgment is vacated or superseded by appeal to circuit court, although revived by dismissal of appeal (Code 1930, sections 64, 67).
3. JUSTICES OF THE PEACE. On appeal from justice court to circuit court, plaintiff could suffer voluntary nonsuit without thereby reinstating justice court's judgment so as to render it res judicata ( Code 1930, sections 64, 67, 594).
Cause being in circuit court for trial anew, as though originally brought in that court, plaintiff-appellant was entitled to avail itself of right granted to every plaintiff by Code 1930, section 594, to suffer nonsuit of cause, and by so doing cause was taken out of court and judgment of justice court vacated; and hence judgment of justice court in such case was not res judicata of controversy and did not bar a future action.
APPEAL from circuit court of George county. HON.W.A. WHITE, Judge.
O.F. Moss, of Lucedale, for appellant.
Plaintiff may suffer a non-suit at any time before the jury retires.
Sections 594, 595, Code of 1930; Adams v. Lucedale Commercial Company, 112 Miss. 607, 74 So. 435; Payne v. Stevens, 88 So. 165; Railroad Company v. Williams, 109 Miss. 429, 69 So. 215.
An appeal may be taken from the justice court to the circuit court and the appeal, when demanded and bond given, operate as a supersedeas of execution on such judgment.
Sec. 64. Code of 1930.
On appeals from the justice of the peace to the circuit court the case shall be tried anew, in a summary way, without pleadings in writing.
Section 67, Code of 1930.
In case of certiorari the circuit court reviews only the record and proceedings had in the justice of the peace court, while on appeal under section 64 and section 67 the case is tried anew, a new record is made, just as if the case had never been tried before.
Telephone Company v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newell, 61 Miss. 437; Railroad Company v. Andrews, 61 Miss. 474.
De novo means anew; fresh; in the same manner; with the same effect; a second time.
18 C.J. 486.
Filing a bond in accordance with the statute within the time with a justice of the peace operates to remove a civil case to the circuit court.
Redus v. Gamble, 85 Miss. 165, 37 So. 1010.
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 has its foundation in the judgment.
Land Company v. Robertson, 125 Miss. 338, 87 So. 669.
And where the plaintiff appeals to the circuit court from a justice's court, and then exercises his right to dismiss the cause or take a non-suit, the case is taken out of court and the judgment of the justice is thereby vacated.
Leonard v. Security Bldg. Co., 162 S.W. 685, 179 Mo. App. 480, 14 Dec. Dig., 367.
Plaintiff may take a non-suit 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.
A judgment by a justice's court is vacated by an appeal to the circuit court, subject only to revival by a dismissal of the appeal.
Mayott v. Knott, 92 P. 240, 16 Wyo. 108.
There is a vast difference between the dismissing of an appeal from a justice court and a dismissal of the action itself.
Eckard v. Superior Court, 234 P. 80, 195 Cal. 473; Hartsock v. Insurance Company, 223 Ill. App., 433.
A plaintiff may, upon trial, submit to a non-suit or voluntary discontinuance before trial in suit brought into the circuit court by appeal from a justice.
Castator v. Royes Blandford, 192 N.W. 696, 221 Mich. 591; Garfield v. Steel Corp., 194 N.W. 526, 223 Mich. 694.
Appellant claims that there is now a judgment of the justice of the peace court against them on the merits, and also a judgment of dismissal of the circuit court, and that, under section 2400, Hemingway's 1927 Code, the judgment of the justice of the peace court could now be pleaded as res adjudicata. This would be true but for the appeal to the circuit court. The case on appeal to the circuit court stood as if it had never been tried before. It was to be tried anew.
Parker v. Smith, 150 Miss. 849, 117 So. 249.
In most jurisdictions, on appeals from justice of the peace courts to the circuit court for trial de novo, such appeals vacate the justice judgment.
35 C.J. 786.
A plaintiff may dismiss his action or take a non-suit as well after as before an appeal, even though judgment was recovered against him, and the dismissal of the action may be in whole or in part.
35 C.J., 811, Sec. 524; Slaughter v. Martin, 9 Ala. 285, 289, 63 So. 689.
T.H. Byrd, of Lucedale, for appellee.
It is a general rule that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. And the rule applies to appeals from the justice's court.
3 C.J. 366; Wallace v. Degree, 38 D.C. 145; Felt v. Felt, 19 Wis. 193; Tomlin v. Harper, 6 Ga. App. 808, 65 S.E. 1093.
An appeal from the justice court as provided by the Constitution, the filing of the bond and appeal operates only as a supersedeas of execution on the judgment rendered in the justice court. It does not vacate or destroy the solemnity, force and effect of a final judgment rendered in the justice of the peace court.
Section 171, Constitution of 1890; Section 64, Code of 1930.
Appeals from the justice of the peace are to be tried anew, as if never tried before.
Amory Tel. Co. v. Cox, 103 Miss. 541, 60 So. 641; Callahan v. Newall, 61 Miss. 437; Ill. Cent. R. Co. v. Andrews, 61 Miss. 474.
On a trial de novo the judgment of the justice is not reviewed and reversed or affirmed, but a new, distinct, and independent judgment, as may be required by the merits shown on trial, is rendered by the appellate court. The jurisdiction acquired by the court is, however, appellate, and it cannot render any judgment on appeal which the justice could not have rendered.
35 C.J., pp. 845-846; Stier v. Surget, 18 Miss. 154.
Dismissal deprives appellant of right to trial de novo.
Hill v. Steel, 17 Ark. 440.
The final and effectual dismissal of an appeal deprives the appellate court of all further jurisdiction of the cause, and the justice's judgment has the same force and effect as if no appeal had been taken.
Woods v. Speer, 127 Miss. 593, 90 So. 322; Bank of Commerce v. Franklin, 88 Ill. App. 198; Mann v. Barkley, 21 Ind. App. 152, 51 N.E. 946; Kansas City R. Co. v. Hammond, 25 Kan. 208; Olmstead v. Mason, 3 Bush, 693; Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1095.
The condition to prosecute the appeal with effect is broken where the appeal is dismissed for failure to perfect or duly prosecute it, even when the dismissal is on appellee's motion, and such condition is also broken by voluntary dismissal of the appeal.
35 C.J., pages 889-890; Pass v. Payne, 63 Miss. 239.
On the dismissal of an appeal the cause stands in the trial court as if no appeal had ever been taken.
4 C.J., page 607.
The fact that cases are tried de novo on appeal from the county court to the district court does not render the voluntary dismissal of an appeal by plaintiff from a judgment in his favor an anullment of the judgment.
Pueblo, etc., Lumber Co. v. Danziger, 7 Colo. App. 149, 42 P. 683.
It has been held that, in the absence of special equitable considerations, appellant is not entitled to a dismissal without prejudice.
4 C.J., page 588.
The general rule is that after a final judgment it is too late to dismiss or take a non-suit.
18 C.J. 1153; Denver, etc., R. Co. v. Paonia Ditch. Co., 49 Colo. 281.
A justice's judgment from which plaintiff has appealed to the circuit court, wherein he has taken a voluntary nonsuit, is res judicata in a subsequent suit on the same cause of action, the appeal not vacating the judgment of the justice, but merely suspending its enforcement.
M.M. Cahn Co. v. Hutt, 136 Ark. 185, 206 S.W. 130; Matter of Moran, 59 Misc. 133, 134, 112 N.Y.S. 207.
A judgment on the merits rendered by an inferior court, such as that of the justice of the peace, is a bar to another suit between the same parties on the same cause of action, either in another court of the same grade or rank or in any other court, unless the court rendering such judgment was without jurisdiction of the action.
34 C.J. 1169, 1282, 1283, 1284, 1285; Southern Pac. R. Co. v. U.S., 168 U.S. 1-48; Wilson v. Lacriox, 111 Me. 324-329; Hart Stell Co. v. Railroad Supply, etc., Co., 244 U.S. 294; Great Northern R. Co. v. Mossop, 17 C.B. 130-140, 84 E.C.L. 130.
The general rule is that the effect of a supersedeas or stay is to suspend proceedings and preserve the status quo pending the determination of the appeal. But as a rule it does not reverse, annul or undo what has already been done, and in most jurisdictions the judgment, order, or decree is not vacated or annulled, nor is its validity or effect impaired thereby.
3 C.J. 1446.
The appellant filed suit in the court of a justice of the peace on account for fifty-four dollars and twenty-nine cents, alleged to be due it by the appellee, and recovered a judgment for thirteen dollars and twenty-one cents, from which it appealed to the circuit court. Before the case was heard on its merits in the circuit court, the appellant filed a motion to be permitted to take a nonsuit, and an order was entered sustaining the motion and dismissing the cause without prejudice.
Thereafter the appellant instituted a new suit in the justice court on the same cause of action, and was met by a motion to dismiss the cause on the ground that the former judgment of the justice court was res adjudicata of the controversy. This motion was sustained, and, from the order dismissing the cause, the appellant again appealed to the circuit court. In the circuit court the appellee filed a special plea setting up the former proceedings and judgment as res adjudicata. To this special plea a demurrer was interposed, and the court held that "the judgment of nonsuit entered at a former term of court on a motion of the plaintiff, who was the appellant therein, was in effect a voluntary dismissal of the appeal." and overruled the demurrer. Upon the appellant declining to plead further, the cause was dismissed, and from the judgment of dismissal this appeal was prosecuted.
Section 64, Code 1930, provides how an appeal may be taken from a justice of the peace court to the circuit court, and further provides that "the appeal, when demanded and bond given, shall operate as a supersedeas of execution on such judgment."
Section 67, Code 1930, provides that, on appeal from a justice of the peace to the circuit court, the case shall be tried anew, in a summary way, without pleadings in writing. When a cause is removed to the circuit court on appeal from a justice of the peace court, the jurisdiction acquired by the circuit court is not in any proper sense appellate. The circuit court, in such cases, has no authority to merely review and affirm or reverse the judgment of the justice of the peace, but the case must be tried anew as if it were originally instituted in the circuit court, with the single exception that written pleadings are not required. And the jurisdiction 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, is original and not appellate.
Under section 594, Code 1930, so providing, every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom, unless he do so before the jury retire to consider its verdict. Gulf S.I.R. Co. v. Williams, 109 Miss. 429, 69 So. 215; Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435; Payne v. Stevens, 125 Miss. 582, 88 So. 165. This court does not seem to have heretofore decided the exact question presented by this appeal; that is, whether or not, on appeal to the circuit court from a justice of the peace court, the plaintiff may suffer a nonsuit without thereby reinstating the judgment of the justice court so as to render it res adjudicata of the controversy. But, in the case of Parker v. Smith, 150 Miss. 849, 117 So. 249, 251, the language is persuasive on this point. In that case, on appeal to the circuit court, the motion of defendant to dismiss the suit on the ground that the minor defendant had not been legally summoned was sustained, and, in passing upon the question presented, the court said:
"Appellant complains that there is now a judgment of the justice of the peace court against him on the merits, and also a judgment of dismissal of the circuit court, and that, under section 2400, Hemingway's 1927 Code, the judgment of the justice of the peace court could now be pleaded as res adjudicata. This would be true but for the appeal to the circuit court. The case on appeal to the circuit court stood as if it had never been tried before. It was to be tried anew. . . . The judgment of dismissal in the circuit court did not infuse new life in the judgment of the justice of the peace."
A judgment by a justice of the peace is vacated or superseded by appeal to the circuit court, subject only to revival by a dismissal of appeal, but there is not here involved a mere dismissal of the appeal. The action taken in the court below was a dismissal or voluntary nonsuit of the action itself, and, the cause being in the circuit court for trial anew as though originally brought in that court, the appellant was entitled to avail itself of the right granted to every plaintiff by section 594, Code 1930, to suffer a nonsuit of the cause, and, by so doing, the cause is taken out of court, and the judgment of the justice court vacated. 18 C.J. 1158; Mayott v. Knott, 16 Wyo. 108, 92 P. 240; Leonard v. Security Bldg. Co., 179 Mo. App. 480, 162 S.W. 685; Castator v. Boyes Blandford Co., 221 Mich. 591, 192 N.W. 696; Garfield v. Mansfield Steel Corporation, 223 Mich. 694, 194 N.W. 526.
The judgment of the court below will therefore be reversed, the demurrer to the special plea sustained, and the cause remanded.
Reversed and remanded.