Opinion
No. 27428.
January 21, 1929.
COURTS. On appeal from county court, circuit court erred in rendering new judgment against appellant and sureties, instead of affirming and remanding.
On appeal from county court, circuit court erred in rendering new judgment against appellant and against sureties on appeal bond, instead of affirming and remanding to county court for enforcement by county court of original judgment.
APPEAL from circuit court of Jones county, Second district, HON. B.F. CARTER, Special Judge.
Goode Montgomery and J.R. Buchanan, for appellant.
The circuit court erred in rendering a judgment against appellant and his bondsmen. In the recent case of Eaton v. Hattiesburg Auto Sales Co. (Miss.), 117 So. 534, it is held that the statute creating and governing the procedure in the county courts does not authorize a summary judgment in the circuit court on an appeal bond which supersedes the judgment of a county court; and without express authority therefor an appellate court is without authority to render such a judgment. The judgment of the circuit court in the case at bar is clearly a violation of the above ruling and in this respect should be reversed.
Shannon Schauber, for appellee.
Counsel for appellee contends that the judgment rendered in the circuit court was erroneous in that it attempted to enter a judgment in the circuit court. We submit that although the order of judgment gives the Stimpson Computing Scales Company a judgment against C.S. Williams, and sureties on his appeal bond, yet the case is remanded to the county court in the following words: "Wherefore said cause is remanded to the county court of the second district of said Jones County, to be proceeded with as herein directed." It is true that sec. 729, Hem. Code 1927 provides: "If no prejudicial error be found, the matter shall be affirmed and remanded to the county court for enforcement." Yet, in our opinion, the only way to get the benefit of the appeal bond executed by appellant in the county court is to enter a judgment in the circuit court, and then remand the case for further procedure.
The bond executed by appellant in the county court provides: "Now, therefore, if the obligators shall pay and satisfy the judgment of the circuit court, and all costs of said appeal, and of the court below, in case the judgment be affirmed, then this obligation to be void, otherwise to remain in full force and effect."
From this clause, in the bond, appellee supposes that the circuit court will render a judgment against the appellant, and his sureties. This can be done, and the case remanded, and thus give effect both to the bond and the statute.
The judgment of the county court was correct, and the judgment of the circuit court in affirmance thereof is correct, except that the circuit court, instead of affirming and remanding to the county court for the enforcement by the county court of the original judgment, undertook to render a new judgment in the circuit court, and not only against the appellant therein but also against the sureties on the appeal bond. This was error, as held in Eaton v. Hattiesburg Auto Sales Co. (Miss.), 117 So. 534.
The judgment of the circuit court will be affirmed in so far as it purports to affirm the judgment of the county court, but will be reversed in all other respects; and the case will be remanded to the circuit court, with directions to enter an order (1) setting aside its former judgment, (2) simply affirming the judgment of the county court, and (3) remanding to the county court for the enforcement thereof the original judgment in the said county court.
Affirmed in part, and in part reversed and remanded.