Opinion
No. 29892.
February 8, 1932.
APPEAL AND ERROR. Appeal from circuit court of case arising in justice court held not allowable, where not allowed by circuit court or supreme court judge ( Code 1930, sections 67, 705).
Code 1930, section 67, provides for an appeal from the circuit court to the supreme court in all cases appealed directly to the circuit court from justice of peace court. Section 705 provides that there shall be no appeal from circuit court to supreme court of any case originating in justice of peace court, thence appealed to county court, and thence to circuit court, unless in determination of case constitutional question be necessarily involved, and then only upon allowance of appeal by circuit judge or judge of supreme court.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
M.D. Brown, of Gulfport, for appellant.
Section 705 of the Code of 1930, does not repeal by implication, section 67 of the Code of 1930. Repeals of former statutes are not favored, especially, is this true, when the former statute is re-enacted after the later one was passed.
There is a constitutional question raised and involved in this case, to-wit, the right of trial by jury, section 31 of the Constitution of Mississippi.
T.J. White, of Gulfport, for appellees.
Under section 705 of the Code of 1930, no appeal can be taken to the Supreme Court, unless a constitutional question be necessarily involved, and then only upon an allowance of the appeal by the circuit judge, or by a judge of the Supreme Court. There is no such question involved in this case and for that reason the attempted appeal to the Supreme Court is a nullity and the appeal should be dismissed.
This case originated in the court of a justice of the peace, was appealed to the county court, and from there to the circuit court, where the judgment of the county court was affirmed.
The appeal to this court was not allowed by the circuit court or by a judge of this court, for which reason the appellee requests that the appeal be dismissed.
The appellant's contention is that the appeal is allowed by section 67, Code of 1930, which he says must not be construed to have been repealed or amended by section 705, Code of 1930.
Section 67 provides for an appeal from the circuit court to the Supreme Court in all cases appealed directly to the circuit court from a court of the justice of the peace. Section 705, Code of 1930, requires all appeals from courts of justices of the peace to be to the county court, in counties where there are such courts, and from that court to the Supreme Court, and therefore governs here. That section expressly provides that: "There shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.
Motion sustained.