Alfred v. Batson

45 So. 465 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

This was a declaration in ejectment, brought by the appellee, Batson, against the appellants, to recover certain land, to which there was a plea of not guilty. Batson claims title because of an execution issued by the circuit clerk on an enrolled and recorded judgment of the justice of the peace in favor of Batson against the appellants. In the course of the trial Batson, to make out his case, offered a transcript of the proceedings before the justice of the peace, enrolled in the circuit clerk’s office and recorded in the chancery clerk’s office. The solitary objection made in the court below on the trial was because there was no legal service upon the defendant in the justice of the peace court, for the reason that “ the record shows affirmatively that the said justice of the peace appointed one Wheat, a private person, to execute and return the writ, and there is no showing anywhere in the record that it was a ease of emergency, and that the constable, or sheriff, or a deputy sheriff, could not be had in time, and because the judgment purports to have been one for unliquidated damages, without showing that a writ of inquiry was had and verdict- thereon, and because the execution is one for costs and the costs are not itemized,” which objection was overruled.

It has been held that the book styled “ Docket of the Justice of the Peace ” contains the record of the proceedings of that court, a copy of which he is directed to transmit to the circuit clerk, and a certified transcript of which is required to be recorded. It is further held that a certified transcript from the chancery clerk’s deed books of the record of the copy of that docket, the execution and return and the sheriff’s deed, is enough for the purchaser at the sale of the land to have; and it is held in the same case that the docket record of the justice of the peace of the issuance and return of process is as much entitled to be accepted as true as would be a copy of the summons and the return on it certified by him, and the special appointment presumed to be valid. In Hughston v. Cornish, 59 Miss., 373, the very point was made as is made here. In the proceeding now before us, it must be taken that the special constable was properly appointed.

Affirmed.