Barrett v. Pickett, 78 So. 777

78 So. 777 | Miss. | 1918

Etheridge, J.,

delivered the opinion of the court.

W. A. Pickett sued Jesse Barrett before a justice of the peace for two hundred dollars for rent on land. Judgment was rendered in the justice court- for the plaintiff in the sum of two hundred dollars and costs. The defendant there desired an appeal to the circuit ■court, and the justice of the peace gave the attorney for the defendant a blank appeal bond. The. attorney returned to his home, and, recollecting the amount of the judgment as being two hundred dollars wrote' up the bond describing the judgment as° being a judgment for two hundred dollars but left the penalty of- the bond blank, b<?ing under the impression that the penalty Bad to be twice the amount of the judgment and costs, and not knowing the amount of the costs, he explained to the sureties on the bond the fact, and the sureties agreed that the bond might be filled in so as to make the penalty the proper amount. The attorney thereupon sent the bond to the justice of the peace before whom the judgment was taken, with instructions "to fill in or make the necessary changes in the bond to conform to the necessities of the ease. The justice of the peace refused to do that, believing he had no right to fill in the bond, and thereupon wrote out a bond with the penalty of four hundred and fifty dollars and returned to the attorney of the defendant; hut this was received on the last day on which the bond might be filed, and said attorney lived some twenty miles from the residence of the justice of the peace, and no effort was made to secure a new bond. The .justice declined to send up the papers, and a writ of certiorari was taken from the circuit court, commanding the papers to be sent up. In the meantime the papers had been lost, but the justice made up duplicate copies and re-established the papers under proper proceedings, and sent the papers to the circuit court. In the circuit court the defendant applied for leave to amend the appeal bond, so as to write in the proper amount, and substitute the bond thus amended for the original bond. The court disallowed this motion, and dismissed the appeal, from which judgment appellant appeals here.

Ve think the learned court below was in error, in dismissing the appeal. The bond could be amended in the circuit court by filling in the proper amount un■der section 92 of the Code of 1906 (section 74 of Hemingway’s Code), which reads as follows:

“In all appeals and in proceedings of certiorari to the circuit court, the said court, on motion of the -appellee or obligee, may inquire into the sufficiency of the amount of the bond, and of the security thereon, and. may at any time require a new bond, or additional security, on pain of dismissal; and if any bond be defective, the principal therein may give a new one,, which shall have the same effect as if given originally.”'

This court decided in Denton v. Denton, 77 Miss. 375, 27 So. 383, that an appeal bond in a penalty less than the minimum sum required by law is not void, but may be amended under section 92, authorizing the perfecting of such bonds in the circuit court. In that case the bond was less than the one hundred dollar minimum provided by statute. In Redus v. Gamble, 85 Miss. 165, 37 So. 1010, the court held that certoirari might be resorted to, to bring up a record in a case-where a bond had been filed, in that case in a proper-penalty, but deemed insufficient by the justice of the peace, who refused to approve it.

The case is reversed and remanded.

Reversed and remanded..