Broadus v. Calhoun, No. 24719.

No. 24719. | Miss. | Apr 20, 1925

^* Headnotes 1. Justices of Peace, 35 C.J., Section 568; 2. Logging, 38 C.J., Section 229. This was a proceeding begun in the court of a justice of the peace of Lamar county by Joseph Fillingame Co. against W.M. Havard to establish a claim and a lien for its security on certain lumber under chapter 282 of the Laws of 1922. Joseph Fillingame was the sole owner of the business of the plaintiff, and died during the progress of the litigation. Appellant, A.Q. Broadus, was appointed as administrator, and continued the prosecution of the suit on behalf of his estate. Appellee E.J. Calhoun claimed the lumber levied on. There was a trial and judgment in the court of the justice of the peace and an appeal to the circuit court by the claimant, appellee Calhoun; Havard, the defendant, not joining in the appeal. In the circuit court there was a trial de novo, and a judgment in favor of appellee Calhoun, the claimant, from which judgment appellant prosecutes this appeal.

As stated, the case was founded upon chapter 282, Laws of 1922, which provides in substance that every employee or laborer for any person, partnership, or corporation engaged in operating a sawmill, planing mill, or in cutting and shipping or rafting timber shall have a lien on all lumber and timber of his employer for his wages due by such employer in preference to all debts due and owing by the owner thereof, such lien to be subject to the rights of purchasers or incumbrances for a valuable consideration without notice thereof except such as purchased after suit begun. The statute provides further that the procedure to enforce the lien shall be the same as provided by the statute for the enforcement of purchase-money liens for the sale of personal property. Sections 3080-3081, Code of 1906 (sections 2337-2438, Hemingway's Code).

At the conclusion of the evidence on motion of appellee all the evidence on behalf of the appellant was excluded and the jury directed to return a verdict for appellee, which was accordingly done and the judgment appealed from entered thereon. Appellant's motion to exclude was based on two grounds: First, that the certified copy of the record of the judgment of the justice of the peace sent up to the circuit court with the appeal papers was not competent evidence of the existence of the judgment in favor of appellant against the defendant, Havard, which was necessary to be proven in order to proceed against appellee Calhoun, the claimant; second, that the evidence did not tend to show that the lumber seized under the writ against which a lien was sought to be established was the property of appellee, the claimant Calhoun.

Appeals from the courts of justices of the place to the circuit courts are governed so far as procedure is concerned by sections 83, 84, and 85 of the Code of 1906 (sections 63, 64, and 65, Hemingway's Code). The first named section gives the right of appeal, and provides, among other things, "the justice of the peace shall at once make up a transcript, of the record and properly transmit the same to the clerk of the circuit court. The second statute referred to provides the form for the certification of the record up to the circuit court by the justice of the peace. And the third section provides, among other things, that the justice of the peace shall at once transmit to the clerk of the circuit court a "certified copy of the record of the proceedings with all of the original papers and process in the case, and the original appeal bond given by appellant," etc. As a part of appellant's case in the circuit court he introduced the entire record certified up by the justice of the peace, including the judgment obtained against the defendant Havard in the court of the justice of the peace. The judgment as entered on the minutes of the justice of the peace was not introduced. The contention of the appellant is that the original judgment should have been introduced, and that it was not competent to prove the judgment in any other manner. We are of opinion that the certified copy of the judgment sent up by the justice of the peace was competent evidence; that the original judgment as it appeared on the minutes of the justice of the peace was not required to be produced. The record certified upon appeal from the court of a justice of the peace to the circuit court, where relevant, is competent evidence in the trial of the cause in the circuit court between the plaintiff and the claimant as well as between the plaintiff and the defendant.

We are of opinion, furthermore, that the evidence offered on behalf of appellant to show that the lumber seized was the property of the defendant W.M. Havard and was not the property of the claimant appellee Calhoun was sufficient to go to the jury on that question. Appellant's evidence tended to show that the lumber seized was manufactured at the mill of the defendant Havard by the laborers, whose claims and rights thereunder were transferred to appellant's intestate; that, if the appellee Calhoun had purchased the lumber, there were circumstances indicating that he was not a bona-fide purchaser for value without notice of the laborers' liens thereon. The question, we think, should have been submitted to the jury. There was enough evidence to make it an issue of fact for the jury and not a question of law alone for the court.

Reversed and remanded.