Opinion
No. 30081.
May 30, 1932.
1. JUSTICES OF THE PEACE.
Circuit court and Supreme Court were confined to examination of questions of law arising or appearing on face of record and proceedings in court of justice of peace (Code 1930, section 72).
2. JUSTICES OF THE PEACE.
In justice of peace court, issue may be joined ore tenus and judgment need not recite the fact.
3. JUDGMENT.
Judgment, to be complete, need only identify parties and set forth relief granted, provided it appears therefrom to have been made by court in whose records its entry is written.
4. JUSTICES OF THE PEACE.
Court of justice of peace is court of record and of general jurisdiction (Code 1930, section 2076).
5. JUSTICES OF THE PEACE.
Presumption of law is that justice of peace court had sufficient proof before it before rendering judgment (Code 1930, section 2076).
6. JUDGMENT.
Judgment of court of record need not express upon its face that it was rendered after due proof.
7. JUSTICES OF THE PEACE.
Recital in justice of peace judgment that court was of opinion that plaintiff take nothing by suit indicated justice had reached conclusion regarding what relief he would grant.
APPEAL from circuit court of Scott county. HON. D.M. ANDERSON, Judge.
J. Knox Huff, of Forest, for appellant.
The judgment of the justice of the peace in this case, on its face, shows that there was no issue joined between the litigants and that there was no trial. On its face the judgment is partial, arbitrary and absolutely inconsistent with justice. In the whole record there does not appear even a plea by the defendant; none is inferred from the judgment; and the judgment does not recite the hearing or consideration of any testimony whatsoever.
The statute requires that issues be joined.
Sec. 2089, Code of 1930.
As issue must be joined, this court recognizes the necessity for an issue.
Miss. Central R.R. Co. v. May et al., 115 So. 561, 149 Miss. 334.
Code, section 2089, Hemingway's Code of 1927, provides that "the justice shall hear and determine the cause if the parties appear." Since there was no issue made up there could have been no trial. Trial is defined "all proceedings in the progress of a prosecution after the issues are made up; down to and including the rendition of the verdict."
Trial has been defined as "the judicial investigation and determination of the issues between the parties."
Gulf etc. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613; White et al. v. Roach, 53 So. 622, 98 Miss. 309.
In attempting to classify the "Supplement to Record" filed herein, it does not appear to rise higher than an unsworn pleading. But assuming that it takes the dignity of evidence, it has no place for consideration by this court on this appeal.
Federal Credit Co. v. Zepernick Grocery Company, 153 Miss. 494, 121 So. 114.
O.B. Triplett, Jr., of Forest, for appellee.
The docket entries contained all of the essentials required by Section 2074, Code of 1930.
No written plea by appellee was necessary.
Reinhardt v. Carter, 49 Miss. 315; Aaron v. Podesta, 68 Miss. 82; G. S.I. Railway Company v. Kelly, 131 Miss. 133, 95 So. 131.
A general appearance by defendant without any plea entitles him to offer a plea of general issue and precludes judgment by default.
Craig v. Pearson Lumber Co., 60 So. 838, 179 Ala. 525.
The recital that "the court is of the opinion that the plaintiff take nothing by his suit," necessarily implies "a conviction founded on probable evidence."
Webster's New International Dictionary, page 150, defining "opinion;" Am. Encys. Dict., vol. viii, page 2919, defining "opinion."
This recital is supported by the legal presumption that the judgment was rendered only after a hearing according to law.
22 C.J., p. 129, sec. 68.
There is nothing in the record which even tends to show that the circuit court considered anything other than the face of the record of the justice of the peace court, which record appears partly in the petition of appellant for certiorari and partly in the return of the justice of the peace.
This is an appeal from a judgment affirming a judgment of the justice of the peace brought to the court below by a writ of certiorari. The docket entries of the justice of the peace are as follows:
================================================================= | Sum | Process | "Name of Parties | Demanded | When issued | When Returnable. — ---------------|----------|-------------|---------------------- E.H. Simpson | | | vs. | $120.91 | 3/2/31 | 3/16/31 H.M. Phillips |------------------------|---------------------- | Witnesses | Officers return. Cause of Action | | | C.D. Denson | I this day executed Open Account | Vick Laird | the within writ by | Mrs. H.M. Phillips | delivering to the | F.K. Weems | within name, H.M. | Served on the 12th day | Phillips, a true copy | of March 1931. | of this writ more | | than 5 days before | | the return day of the | | within writ. | | Done this the 4th day | | of March A.D. 1931. | | T.M. McGough, | | Constable, F.R. | | Walters, J.P. — ---------------------------------------------------------------
"Judgment or disposition of case.
"This cause came on for hearing and the plaintiff and defendant each appearing in the court, the court is of the opinion that the plaintiff take nothing by his suit.
"It is therefore ordered and adjudged that plaintiff take nothing by his suit and that the plaintiff pay all costs for which let execution issue.
"Ordered this the 16th day of March, 1931.
"F.R. WALTERS, J.P."
The defects alleged by the appellant to appear on the face of the judgment are that it does not appear therefrom that issue was joined by the litigants, evidence heard, and a decision made by the court thereon.
Considerable is said in the petition on which the writ was granted, and in the return of the justice of the peace thereto, as to what occurred when the judgment was rendered, but the court below was, and this court is, "confined to the examination of questions of law arising or appearing on the face of the record and proceedings" in the court of the justice of the peace. Section 72, Code 1930. Issue should be joined before the trial of a case on its merits; but this may be done in the court of a justice of the peace ore tenus, and it is not necessary for his judgment to recite the fact. All that is necessary to constitute a complete judgment is for it to identify the parties and set forth the relief granted, provided it appears therefrom to have been made by the court in whose records its entry is written. 1st Freeman on Judgments (5 Ed.), sec. 73; Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492. The court of a justice of the peace is a court of record, section 2076, Code 1930, and of general jurisdiction. Cotton v. Harlan, 124 Miss. 691, 87 So. 152. And of such courts "the presumption of law is that the court had sufficient proof before it before rendering the judgment; and there is no rule of law which requires the judgments of a court of record to express upon their face that they are rendered after due proof." Wade v. Hurst et al., 143 Ga. 26, 84 S.E. 65, 66. The same presumption exists even as to judgments of courts of special and limited jurisdiction where the jurisdiction of the person and subject-matter appears therefrom. Scott v. Porter, 44 Miss. 364; Root v. McFerrin, 37 Miss. 17, 75 Am. Dec. 49. The recital in the judgment that "the court is of the opinion that the plaintiff take nothing by his suit" clearly indicated that the justice of the peace had reached a conclusion as to what relief he would grant, which fact, moreover, is indicated by the granting of the relief.
Affirmed.