58 So. 775 | Miss. | 1912
delivered the opinion of the court.
On the 21st day of October, 1907, a justice of the peace judgment was recovered by E. ,G. and Charles O’Ferrell composing the partnership firm of O’Ferrell Bros., against W. F. Shows, A. E. Grayson, and Thomas Sims, for- the sum of one hundred forty-one dollars, and seventy-six cents. No appeal was prosecuted from this judgment to the circuit court, and the validity of the
It thus appears that the only judgment rendered on the bond by the circuit court was for costs. No appeal was taken from the judgment of the circuit court, and therefore the judgment dismissing the writ of certiorari and assessing costs was a final judgment. After the writ
This hill was demurred to on many grounds; hut the .first and fifth are the only ones we shall notice, since they will dispose of the case. The first ground of the demurrer states that the judgment of the circuit court, dismissing the petition and writ of certiorari, and giving judgment against petitioner and his sureties on his bond for costs, only had the effect of leaving the judgment of the justice of the peace court in full force and effect, and also the levy made under the judgment. The fifth is that there is no equity on the face of the bill. This last cause of demurrer covers the whole case. The court overruled the demurrer, and allowed an appeal to this court to settle the principles of the case.
Section 90 of the Code of 1906, in relation to the procedure on certiorari to a justice of the peace court, is as follows: “All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, he removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to he approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same be apparent, or may then:
The sole question is: "What is the effect of the supersedeas granted in this case? The facts show that before the supersedeas was granted an execution had been issued and levied on real property, and as a consequence a lien had been fastened on same. Is this lien destroyed by the granting of the supersedeas, or is the effect of the supersedeas simply to suspend further action under the judgment until the supersedeas is disposed of? In other words, are liens which were acquired before the supersedeas was granted destroyed by it, or are they merely stayed and preserved during the life of the supersedeas¶ "We desire to emphasize the fact that in this case the levy was made on real, and not personal, property. "We do this because many courts draw a distinction between the effect of a supersedeas where the levy is on personal property, instead of real estate. Many courts hold that a levy is discharged by a supersedeas when the levy is bn personal property, but hold to the contrary when the levy is on real estate. There seems, to be much reason in making the distinction, and we reserve the question for future determination. See Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 South. 523, 5 Ann. Cas. 784, and note. The authorities on the proposition involved in this case are in irreconcilable conflict, and we must choose that line of authority which
One o‘f the most interesting discussions on this subject which we have found is to be found in the note to the case of Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 South. 523, in 5 Ann. Cas. 784. This case also demonstrates the hopeless conflict of the courts on this subject. ' It is our judgment that the best-reasoned authorities hold that the perfecting of a supersedeas only stays further proceedings, and does not interfere with what has already been done. In the case of Thalheim v. Camp Phosphate Co., supra, the court said: “The levy of an execution is not defeated by a subsequent writ of supersedeas; but the only effect a supersedeas can have in such a case is to stay all further proceedings, letting things which have already been done remain in statu; quo.”
It'was error in the court to overrule the demurrer, and its judgment in so doing is reversed, demurrer sustained,, and cause remanded, for the settlement of other questions which may arise on the record as to damages, etc.
Reversed and remanded.
ON SUGGESTION OR ERROR.
delivered the opinon of the court.
This cause was decided at a former day of the term, but is called to our attention again by a suggestion of
Counsel filing the suggestion of error assert that the former opinion is in conflict with the case of Buckley v. George, 71 Miss. 580, 15 South. 16, and declare that they “do not think such an important principle” as that declared by the Buckley case “should be lightly set aside, without at least having the case referred to in the opinion of the court.” We respond to the suggestion of error, because in our judgment counsel are misled by the Buckley case. If the Buckley case has any bearing on the question in this case, it supports the view of the court and does not conflict with it. The question in this case is as to whether or not a supersedeas destroys previously acquired liens on land. The question in the Buckley case was whether or not- the receivers should continue in possession of a stock of goods, choses in action, and land, after the execution of a supersedeas bond by the party whose property had been placed in the hands -of a receiver. In the Buckley case there was no question as to whether or not a lien was destroyed by the execution of a supersedeas. It was a question of where the "title was vested pending an appeal with. supersedeas from an order of the chancery court appointing a receiver. In the Buckley case the facts show that a receiver was appointed to take charge of a stock of goods,
It will be seen from the above opinion that the court distinctly recognizes the application and soundness of the rule which we announced in the former opinion of this court. In the Buckley case the court says: “The rule undoubtedly is that a supersedeas fixes and preserves the existing condition until the cause can be finally heard and determined.” But when the application of this rule would result in the destruction of the estate, the court will not adhere to this rule of procedure merely to preserve an analogy. In all such cases courts have power to make such orders as are necessary for the preservation of the estate, and since, when the supersedeas bond was given by Mrs. Buckley, it prevented any further action on the part of the receivers, and since, if they could not act, it would destroy the estate itself, the court in that case gave that effect to the supersedeas which was necessary to preserve and not destroy.
But the question in that case is totally different. The Buckley case illustrates the reason why the authorities make a distinction between real estate and personal property. If there was no distinction and the giving of a supersedeas -allowéd no further dealing with personal property until after the supersedeas should be disposed of, it might result in the entire loss of the property itself, and hence the courts, applying the principle which is announced in the Buckley case, refuse to “follow an analogy where it leads to the destruction of an estate,” and make a distinction between real and personal property in the effect given to a supersedeas.
The suggestion of error is overruled.