Opinion
No. 34442.
February 24, 1941.
1. JUSTICES OF THE PEACE.
Where appeal bond in justice court was filed at least 21 days after the judgment, the appeal and the subsequent judgment thereon were a nullity.
2. APPEAL AND ERROR.
The Supreme Court will not affirm a judgment void on its face, even though the objection was not made in the lower court.
APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.
W.D. Womack, of Belzoni, for appellants.
The declaration does not state a cause of action and is insufficient to sustain a default judgment.
Bradstreet Co. v. City of Jackson, 81 Miss. 233, 32 So. 999; Penn. Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; Odom v. R.R. Co., 101 Miss. 642, 57 So. 626; Bd. of Sup'rs, Neshoba County, v. City of Philadelphia, 160 So. 730, 172 Miss. 326.
Default judgment is void where declaration sounding in damages, no writ of inquiry having been awarded. Sec. 603, Code 1930, as to final judgments applies to actions ex contractu alone. Interlocutory judgments may be taken, on which writs of inquiry shall be awarded.
Allison Hyde v. Williams, 180 So. 142, 142 Miss. 825; Stepp v. Stephenson, 111 So. 747, 146 Miss. 468; Jenkins v. Wilkerson et al., 24 So. 700, 76 Miss. 368; Bd. of Sup'rs, Neshoba County, v. City of Philadelphia, 160 So. 730, 172 Miss. 326.
Default judgment should be set aside where case can be disposed of in the ordinary way at that term of court, and trial had on the merits.
Tonkel v. Williams, 112 So. 368, 146 Miss. 842.
J.H. Price, of Indianola, for appellee.
Either party may appeal to the circuit court of the county from the judgment of any justice of the peace if appeal be demanded and bond given within ten days after the rendition of the judgment.
Sec. 64, Code 1930.
This court has repeatedly held that even though no question of jurisdiction is raised by either party, yet if this court finds that the court below was without jurisdiction, this court will dismiss the appeal on its own motion, and it has repeatedly done so, even though it overruled appellee's motion to dismiss this appeal predicated upon the proposition that the justice of the peace judgment in this case was rendered March 11, 1939, and no appeal was demanded nor bond given until the ____ day of April, 1939. The circuit court never acquired jurisdiction of this suit. And this court has never acquired jurisdiction of this suit.
Kelly v. Ladies Aid Society, 140 Miss. 580.
An appeal is not a matter of right and is allowable only in the cases and on the terms provided, and the statute must be complied with to give jurisdiction.
Bridges v. Clay County, 57 Miss. 252; State v. Poplarville Sawmill Co., 119 Miss. 432; Jones v. Cashin, 133 Miss. 585; Union Motor Car Co. v. Cartledge, 133 Miss. 318; Jacob v. Jackson, 128 Miss. 434; Lamas v. Renaldo, 151 Miss. 325; Simpson v. Boykin, 118 Miss. 701; Carney v. Moore, 130 Miss. 658.
The time prescribed for the appeal is a limitation of the jurisdiction of the circuit court, and an appeal taken after the prescribed time is a nullity.
Kramer v. Holster, 55 Miss. 243; Campbell v. McCormick Motor Co., 146 Miss. 672.
Argued orally by J.H. Price, for appellee.
Plaintiff brought her action in a justice court of Humphreys County for the conversion of two cows, valued therein at $115, and upon summons duly executed, took judgment by default in the amount sued for. The judgment was dated March 11, 1939. Appeal bond was filed therein dated "the ____ day of April, 1939." No action was thereafter taken therein by the justice of the peace, and the record was not transmitted to the circuit court until its August 1940 term. Although there are allegations in the briefs as to the reason for the delay and the circumstances under which the transcript was prepared for transmittal to the circuit court, it is sufficient that the record shows its certification on August 12, 1940. Judgment by default was taken again in the circuit court against the defendants and the sureties on their appeal bond in the sum of $115, together with interest and statutory damages of ten per cent. Motion was thereafter made by defendants at the same term to set aside the default judgment. The grounds of such motion were that defendants had no notice or information of the filing of the transcript on appeal, and questioned the date of the judgment appealed from. It also alleged that defendants had a meritorious defense to the suit, but did not set out the nature of such defense. An affidavit of one of the defendants accompanying the motion alleged that "affiant immediately furnished a good and sufficient appeal bond after the judgment of the Justice of the Peace." The justice of the peace himself was introduced as a witness upon the motion and testified that the judgment in his court was rendered March 11, 1939. Testimony seeking to show when such judgment was entered on the magistrate's docket and also seeking to explain the circumstances and time of its rendition was excluded by the circuit court. Upon the appeal here there is questioned for the first time by the defendants the invalidity of the default judgment on the ground that the damages should have been ascertained by a writ of inquiry. So plaintiff for the first time alleges the invalidity of the appeal from the magistrate's court. There was no motion in the circuit court to dismiss the appeal on this ground. Upon the record as presented, the appeal bond in the justice court was filed at least twenty-one days after the judgment, which would render such appeal and the subsequent judgment thereon a nullity. Campbell v. McCormick Motorcar Co., 146 Miss. 672, 113 So. 175.
This Court will not affirm a judgment void on its face when appealed to this Court, even though this objection was not made in the lower court. Therefore there is no judgment for this Court to affirm. Alexander v. Porter, 88 Miss. 585, 41 So. 6.
Since there must be a reversal of the case on this ground, there is no need to notice other errors assigned.
Reversed and remanded.