Carney v. Moore, 94 So. 890

Carney v. Moore

94 So. 890 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Lauderdale county, dismissing an appeal to that court *667from a judgment of a justice of the peace. Appellee, N. G. Moore, sued appellant, G. H. Carney, in a court of a justice of the peace of said county to recover eighty dollars which appellee claimed as a balance due him by appellant on open account. There was a trial in that court, which resulted in a judgment in favor of appellee, from which appellant attempted to appeal to the circuit court.

The bond for appeal to the circuit court was not executed by appellee until after the expiration of ten days from the rendition of the judgment by the justice of,the peace, but this fact appears not to have been discovered by appellant until after trial and judgment in favor of appellee in the circuit court. There was a trial de novo in the circuit court, resulting in a judgment for appellee for the sum of eighty dollars, the amount sued for, with costs. There was a motion for a new trial by the appellant, which was overruled by the court. Later on in the term appellant discovered that appellee’s bond for appeal to the circuit court had not been executed within ten days from the rendition of the judgment sought to be appealed from, as prescribed by section 83, Code of 1906 (Hemingway’s Code, section 63). Thereupon appellant entered a motion based on that fact to dismiss the appeal to the circuit court and tax appellee with the costs, which motion the circuit court overruled, from which judgment appellant prosecutes this appeal.

The contention on the part of appellant is that section 83, Code of 1906 (Hemingway’s Code, section 63), prescribing the time within which an appeal shall be taken from a judgment of a justice of the peace to a circuit court, is mandatory and jurisdictional, and therefore, when not complied with, the circuit court is without jurisdiction of either the person of the opposing party or of the subject-matter of the litigation, and that, although the party appealed against may by voluntary appearance consent to jurisdiction of his person he cannot waive jurisdiction of the subject-matter. On the other hand, the appellee contends that in such case the party appealed against may *668waive both jurisdiction of his person- and of the subject-matter. This question is controlled by the principles announced in Kramer v. Holster, 55 Miss. 243. In that case the court construed section 1332, Code of 1871, which provided that an appeal from a judgment of a justice of the peace should be taken within five days from the rendition of such judgment. Section 83, Code of 1906 (Hemingway’s Code, section 63) provides, among other things, that either party may appeal to the circuit court from a judgment of any justice of the peace, provided the appeal be demanded and bond given within ten days from the rendition of such judgment. In that case the court held that an appeal from a judgment of a justice of the peace after the expiration of the time limited by the statute was void and did not vest the circuit court with jurisdiction to try the cause; that the time within which such appeals were required by the statute to be taken was a limitation on the jurisdiction of the circuit court, and not a mere statute of limitation to be pleaded by the opposite party. In other words, that the statute had a twofold purpose, namely, a limitation of time within which appeals might be taken, and also a limitation on the jurisdiction of the circuit court. Or putting it differently, that the purpose and effect of the statute was to confer jurisdiction on the circuit court upon condition that the appeal bond was given within the time prescribed by the statute. It is evident that what was said of the statute under consideration in that case applies with equal forcé to the statute here under consideration, for their object and purpose were the same, as is apparent from their language.

Appellee contends, however, that appellant by his voluntary appearance in the circuit court, and engaging in the trial there without objection to the jurisdiction of that court until after trial and judgment, waived the question of jurisdiction. A complete answer to that contention is that, although a party may consent to jurisdiction of his person, he cannot by consent give the court jurisdiction of the subject-matter, which is not conferred on it by law, 3 *669C. J., sections 124-127, inclusive, pp. 369-371. The circuit court had no jurisdiction of the subject-matter because the appeal bond was not given within the time fixed by the statute, and this failure could not be remedied by agreement. Therefore the circuit court being without jurisdiction of the subject-matter, the judgment is void, and appellant was authorized to attack it in the manner he did.

Reversed, and judgment here for appellant.

Reversed.