Opinion
No. 35817.
March 26, 1945.
1. COURTS.
County court has inferior equity jurisdiction notwithstanding constitutional provision conferring on chancery court full jurisdiction in all matters of equity (Const. 1890, secs. 159, 172).
2. COURTS.
Statute providing an appeal from county court to chancery court in equity cases is valid and is not objectionable on ground that appeals from inferior courts can be taken only to circuit court (Code 1942, sec. 1616; Const. 1890, sec. 156).
3. COURTS.
Where appeal from decree of county court in equity case was improperly taken to circuit court and it was too late to appeal anew, appeal should have been transferred to chancery court on appellant's motion, and circuit court erred in overruling motion to transfer and in dismissing appeal (Code 1942, sec. 1616; Const. 1890, secs. 157, 162).
4. COURTS.
The constitutional provision that all cases brought in circuit court whereof chancery court has exclusive jurisdiction shall be transferred to chancery court, and like provision as to transfer by chancery court to circuit court, are mandatory and apply to appeals (Const. 1890, secs. 157, 162).
5. CONSTITUTIONAL LAW.
In construing constitutional provision, court will look to dominant object to be accomplished by constitutional provision rather than to a literal or technical interpretation.
6. COURTS.
Where appeal from decree of county court in equity case is improperly taken to circuit court and is transferred to chancery court, but appeal bond is conditioned to performance according to judgment of circuit court, if the bond is not sufficient it may be amended in chancery court as a condition of retention of the appeal (Code 1942, sec. 1673).
7. APPEAL AND ERROR.
Where appeal from decree of county court in equity case was improperly taken to circuit court which improperly dismissed appeal instead of transferring it to chancery court, the Supreme Court would not consider the merits of the case.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
J.W. Savage and English Lindsey, both of Gulfport, for appellant.
The circuit court erred in overruling appellant's motion to transfer the appeal to the chancery court of Forrest county. Section 1616, Code of 1942, authorizes appeals from the equity side of the county court docket to the chancery court, such appeals prior to 1940 having been taken to the circuit court. However, it is very questionable whether the legislature can vest appellate jurisdiction of any kind in the chancery court for the reason that the Constitution by Section 156 prescribes that the circuit court shall (impliedly from inferior courts) have the only appellate jurisdiction that may be prescribed, there being no constitutional provisions whatever to give the legislature power to make the chancery court an appellate court. Appellant submits for consideration, without any authority to substantiate its position, that in view of our liberal statutes regarding transfer of causes from circuit to chancery courts, and as an inherent power of any court, the circuit court could have transferred this cause to the chancery court upon appellant's motion. This, appellant believes, is a new question in our jurisprudence, and request a ruling on it, if necessary to a proper determination of this cause.
This cause, being one of equity cognizance, could not be heard in the county court for the reason that the county court has no jurisdiction to try equity matters, this jurisdiction having been vested by the Constitution fully in the chancery court.
Bank of Mississippi v. Duncan, 52 Miss. 740; Constitution of 1890, Secs. 159(a), 161; Cyclopedic Law Dictionary by Shumaker and Longdorf, p. 513; Webster's Dictionary, word "full."
In spite of the action of the circuit judge in dismissing this appeal, this Court still has jurisdiction to consider and dispose of this cause for the following reason: Section 1959, Code of 1942, provides that an appeal is not to fail for certain things. One of these things is the failure of any officer to comply with the requirements of law in reference to the appeal. Clearly, the circuit court of Forrest County might have known that the record in this case should have been sent to the chancery court, under the law. If he had sent it to the chancery court, the bond could have been easily amended. Appellant concedes that its attorney made an error as to the court in the bond offered to the clerk, but was it not the duty of the clerk to refuse the bond so offered? At any rate, appellant contends owing to the beneficent provisions of the said Section that its appeal ought not to fail, and that this honorable Court should pass judgment upon the merits of this cause.
Heidelberg Roberts, of Hattiesburg, for appellees.
The fourth assignment of error of appellant deals with question of transfer of causes from chancery to circuit courts. Reference is made to Section 1616 of the Code of 1942, which deals with appeals from county courts, and it is there pointed out that appeals from the equity side of the docket of the county court will go to the chancery court. It is then contended that Section 156 of the Constitution of the State of Mississippi designates the circuit court as an inferior appellate court. It is true that said Section 1616 provides for appeals from the county court to the chancery court where the cause is pending on the equity side of the docket. The part here applicable is that, "Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided." Said Section 1616 further provides that appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment or decree on the minutes of the court unless an extension of time has been granted. Said Section 156 of the Constitution of 1890 does provide for the circuit court having such appellate jurisdiction as may be prescribed by law. The legislature of Mississippi through said Section 1616 has given to the circuit court appellate jurisdiction of matters "from the law side of the county court" and it has given appellate jurisdiction to the chancery court of matters "from the equity side." In other words, since this particular cause arose on the equity side of the docket of the county court of Forrest County, Mississippi, no appeal was permitted under the law to the circuit court.
The circuit court did not act upon motion to transfer to the chancery court but instead dismissed the cause and there is nothing in the dismissal order to show why the cause was dismissed other than that the court was of the opinion that it had no jurisdiction over the appeal, and that it should be dismissed. There are three reasons why the attempted appeal was not sufficient and why the attempted appeal should have been dismissed:
(1) There appears no notice to the court reporter to transcribe her notes as provided by Section 1640 of the Code of 1942, and the part of the section applicable being that, "in either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement as to how the notice was served."
(2) The appeal bond contemplates an appeal from the county court to the circuit court of Forrest County, Mississippi, and the part of the bond applicable in this direction provides that, "if the said judgment of said county court be affirmed by the Circuit Court of Forrest County, Mississippi to which court an appeal from said judgment of said court is to be prosecuted, then this obligation shall be void." It is true that under the law existing in Mississippi the bond may have been amended on appropriate application therefor, but no application for the amendment of the bond was filed. In the case of Gaddis v. Palmer, 60 Miss. 758, application was made to amend the appeal bond and the court speaking through Judge Campbell held that the appellant should have been allowed to give a new bond, as he offered to do, if the first was defective in any respect. Another case approving the amendment of an appeal bond is that of Nations v. Lovejoy, 80 Miss. 401, 31 So. 811. It is Section 1208 of the Code of 1942 which provides that the court may on motion require a sufficient appeal bond and which further provides for the giving of a new bond if the appellant furnishing the faulty bond elects so to do.
(3) There is no provision under the law as hereinbefore pointed out for an appeal from the equity side of the docket from the county court to the circuit court. The appeal statute affecting county courts, and being Section 1616 of the Code of 1942, applies and controls in this respect.
The fifth assignment of error has to do with the constitutionality of the county court appeal statute as it relates to Section 159 of the Constitution of Mississippi, which provides that the chancery court shall have full jurisdiction in matters of equity and other matters identified. The words "full jurisdiction" have been interpreted by the Supreme Court of Mississippi to mean that where the court takes jurisdiction of a subject, it has authority and power to dispose of it fully and finally.
Bank of Mississippi v. Duncan, 52 Miss. 740; Georgia Pac. R. Co. v. Brooks, 66 Miss. 583, 6 So. 467; Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615.
There is nothing in these cases to indicate that the words, "full jurisdiction" are intended to mean "exclusive jurisdiction." The interpretation which our friendly opposition is giving to these two words is a strained interpretation. If those drafting the Constitution had intended to give to the chancery court exclusive jurisdiction over the subject matters identified, the language of the section would have justified this conclusion.
Appellant admits that its attorney made an error in the bond offered to the clerk, but inquires if it was not the duty of the clerk of the court to refuse the bond when offered. Reference is made to Section 1959 of the Code of 1942 and it is indicated that this section of the Code dealing with appeals to the Supreme Court of Mississippi should apply. However, if that section was applicable, it became the duty of appellant to make amends to the bond and cause the copy of the notice to the court reporter to transcribe her notes to be filed and to do the other things necessary to perfect the appeal and this said section of the Code provides that, "The court may dismiss an appeal for the failure of an appellant to do, within a reasonable time, what may be necessary to perfect his appeal." In the absence of an application for an amendment of the bond and with no effort to properly perfect the appeal and with an improper appeal, the circuit court of Forrest County had no election but to dismiss the appeal.
Dan King filed his bill in equity in the county court of Forrest County, the amount involved being less than one thousand dollars, and he made defendants thereto Federal Credit Co. and W. Horace Williams Co., corporations, and J.G. Seals. The defendants answered, and Federal Credit Co. made its answer a cross-bill against the other parties. On the final hearing the county court entered a decree against the Williams Co. as well as against one or more of the others, and the Williams Co. appealed, not to the chancery court, but to the circuit court, and in the circuit court the appeal was dismissed. From the circuit court the Williams Co. has appealed to this court.
The parties have briefed the case on the merits, but appellant says further, and touching the procedural aspects of the case, first, that the decree of the county court is void for the reason, as appellant contends, that the county court was without jurisdiction of the subject matter, the cause being one in equity. We shall deal only with the procedural points.
Appellant says that when Section 159, Constitution 1890, conferred upon the chancery court full jurisdiction in all matters of equity, it meant thereby to confer upon that court exclusive jurisdiction in matters of equity and that this would prohibit the exercise by the county court of any part of such jurisdiction although done as an inferior court of equity under Section 172 of the Constitution. This contention was denied in State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129, nearly twenty years ago, and we had supposed that everybody has considered the debate on that issue as having been closed, as it is.
Appellant's second point is that Section 1616, Code 1942, which is a rescript of Chapter 229, Laws 1940, is invalid in so far as it provides an appeal from the county court to the chancery court in equity cases, it being the contention of appellant that appeals from inferior courts can be taken only to the circuit court and Section 156 of the Constitution is cited in support of the contention. This point also has been disposed of adversely to the contention of appellant by the principles laid down in Drummond v. State, 184 Miss. 738, 185 So. 207. It is interesting to note that the county court act as originally introduced in the legislature in 1926 contained the provision that appeals from the county court in equity cases should go to the chancery court, but the committees, out of caution that Section 156 of the Constitution might be held to control, changed it, and this was one of the grounds of dissent by Judge McGowen in the Speakes case. At the next session of the legislature after the Drummond case was decided, the legislature enacted the statute as it now stands, and as it should have been from the first.
Appellant's third point that the circuit should have transferred the appeal to the chancery is well taken. As already stated, appellant took its appeal from the county court to the circuit court, although the case in the county court was in equity. When appellees in the circuit court challenged the jurisdiction of that court of the appeal under the statute, Section 1616, Code 1942, appellant moved the court to transfer the appeal to the chancery court where it belonged, but the circuit court overruled the motion and dismissed the appeal, which action if correct would deny an appeal because at the time it was too late to appeal anew.
Section 157, Constitution 1890, provides that "All causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court," and Section 162 contains a like provision as to transfers by the chancery court to the circuit court. These sections are mandatory as held in Murphy v. Meridian, 103 Miss. 110, 60 So. 48, and Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149. And see particularly Bradley v. Howell, 161 Miss. 346, 357, 133 So. 660, 134 So. 843. It is true that the cited constitutional sections when read literally have reference only to cases "brought in the circuit court" or in the chancery court, but the principles announced in Moore v. General Motors Acc. Corp., 155 Miss. 818, 125 So. 411, are to be applied, so that when a case gets to either of these courts on appeal they are there within the constitutional sections as well as if originally brought there. The court will look to the dominant object to be accomplished by the constitutional provisions rather than to a literal or technical interpretation.
In Moore v. General, etc., Corp., supra, the court had under consideration the question whether Section 147 of the Constitution applies to county courts. The language of that section is that "no judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or of common-law jurisdiction," etc. It was contended in that case that inasmuch as the Section by its express language referred only to the circuit and chancery courts it could not be made to apply to the county courts, but the court held that the purpose of the constitutional provision was to prevent the running of the gauntlet as to whether at the end a case was one of equity or of law, and that it applied as well to county courts. So here, if on appeal to the circuit court it is found that the case is one in equity, or if on appeal to the chancery court it is found to be one in law, unless the constitutional provisions requiring transfer are to be applied, then again the way is open for the running of the ancient gauntlet which the Constitution intended completely to intercept. We do not deem it necessary to further enlarge upon what was said in Moore v. General, etc., Corp. Our conclusion is that the circuit court should have transferred the appeal to the chancery court where it belonged.
It is true that the appeal bond was conditioned to perform according to the judgment of the circuit court, but if not sufficient under Section 1673, Code 1942, it could have been amended in the chancery court as a condition of retention there, but as to either of these we do not decide since this point is not discussed by the parties beyond its mention.
We do not touch upon the merits of the case for it has not been reviewed by the chancery court which must be first done. We reverse the judgment which dismissed the appeal, and, making the order which the circuit court should have made, we transfer and remand the cause to the chancery court of Forrest County.
Reversed and remanded to the chancery court.