| Miss. | Oct 15, 1879
delivered the opinion of the court.
On February 26, 1878, Rosa Johnson, one of the defendants in error, made oath in due form of law, claiming a lien on certain cotton raised on a plantation leased by the plaintiff in error. She asserted lier lien as a laborer, under the act of April 14, 1876, entitled “ An Act to provide for Agricultural Liens, and for other purposes.” Acts 1876, p. 109. The amount of her lien as claimed, was one hundred and eighty dollars. At the same time, each of the other defendants .in error made an affidavit asserting for himself a similar lien on the same property, but for amounts less than one hundred and fifty dollars. The several affidavits were made before one E. J. Smith, a justice of the peace of Claiborne County, who thereupon issued the appropriate writs, under the provisions of the act above mentioned, except that he made each writ returnable before one Daniel Willis, another justice of the peace of said county, “ on the regular term of said Willis’ court.” These writs were placed in the hands of the sheriff, who, on the next day, seized seven bales of cotton, under the writ in favor of Rosa Johnson, and five bales under one of the other writs, and three bales under the third one. On March 1, 1878, Breckenridge, the principal defendant and
On the trial of this action, the questions of law and fact were submitted to the judge by consent of parties. The foregoing facts were brought before the judge, on an agreed statement of the facts of the case; and, in addition, it was agreed that the record in the case of Rosa Johnson v. Breckenridge in the lien suit should be also submitted as evidence to the court. From this record, it appears that, in some way not explained, the writ issued by Smith, the justice of the peace, in favor of Rosa Johnson, and made returnable before Willis, another justice of the peace, had actually gotten into the circuit clerk’s office, and was by the clerk docketed as a cause originating in that court. In January, 1879, Breckenridge made a motion to dismiss that case for want of jurisdiction, and then withdrew it, and thereupon immediately the plaintiff therein moved the court to have the writ amended so as to make it returnable to the Circuit Court, instead of before the said Daniel Willis. This motion was granted. The cause was then submitted without any pleadings, other than the affidavit or petition of the plaintiff, to a jury, who returned a verdict in the usual form for an action of assumpsit, for one hundred and eighty dollars; and the court thereupon rendered a personal judgment against Breckenridge for the amount of the verdict and interest. After this, Breckenridge. moved to set aside the judgment, and to dismiss the cause for want of jurisdiction. There is no evidence in the record that Breckenridge took any part whatever in the Circuit Court in this cause, except to make the motion to dismiss for want of jurisdiction. On this evidence, the circuit judge found in the replevin suit against the defendants in error, except Rosa Johnson, and rendered judgment on her claim for the return of the cotton or the payment of the sum of one hundred and eighty dollars and inter
We think the court erred in rendering judgment against Breckenridge. The writ under which the cotton was seized for Rosa Johnson’s benefit was void. On its face it demanded a debt beyond the jurisdiction of a justice of the peace, and it was made returnable before a justice of the peace. It was therefore void on its face, and furnished no authority to the sheriff to do any act whatever under it. He was a trespasser in taking the cotton, and his act did not deprive Breckenridge of his right of possession. He had no authority to return the writ to the Circuit Court. The writ plainly commanded its return to another court; and if the writ had any force whatever, its effect was to allow of a return nowhere else than into the court named in it. But it was an utter nullity, and the sheriff had no power whatever to act under it. The motion of Breckenridge in the Circuit Court to dismiss it for want of jurisdiction was no waiver of its nullity ; it was, on the contrary, an assertion of it. As the writ was illegally returned into the Circuit Court, that court had no jurisdiction to amend it. When a suit is commenced in a court having no jurisdiction, it is not in the power of its ministerial officers to transfer it to another court which has jurisdiction. The proper mode is to dismiss it, and then commence anew in the proper court. It cannot be successfully urged that it was a mistake of the justice of the peace that caused the suit to be instituted in a court having no jurisdiction'; for, whatever may have been the excuse for it, still the fact exists that the suit was actually instituted in a court having no jurisdiction over the subject-matter; and all the legal consequences follow from such an illegal commencement of the suit.
Judgment reversed, and judgment here for plaintiff in error.