189 So. 819 | Miss. | 1939
Lead Opinion
Albert P. Meaut, plaintiff in the court below, brought suit against Jackson county for injury to live stock claimed to have been sustained in the process of dipping for cattle ticks. He rocovered a judgment against the county, and on appeal to this Court that judgment was reversed and the cause remanded. But the appellee, Meaut, was unable to pay the costs adjudged on the appeal, or did not do so, and the mandate has not gone down.
The cause was tried in March, 1938, and is reported in
Section 3400, Code of 1930, reads as follows: "Every final judgment or decree rendered in any cause by the Supreme Court shall be certified by the clerk thereof to the clerk of the court from which the cause was brought, or to which it is remanded, within twenty days after *237 the rendition of the judgment, if the costs accrued in the Supreme Court shall be paid to him, including all costs for which he may issue execution. And it shall be the duty of the clerk of the court below on receiving the certificate, to issue the proper execution on the final judgment or decree, if the same be for the plaintiff in the original cause, for the amount of money or other thing adjudged to the plaintiff, and all costs accrued in the court below; and, if the judgment be rendered for the defendant in the original cause, then, on receipt of the certificate, execution shall issue against the plaintiff in the cause for the defendant's costs; and if the clerk of the Supreme Court fail to issue the certificate as required, he shall forfeit to the aggrieved party one hundred dollars, to be recovered by motion before the Supreme Court on five days' notice."
Under this section of the Code it was held in Mobile O.R. Co. v. Watly,
Section 663, Code of 1930, reads as follows: "A citizen may commence any suit or action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit: `I, ____, do solemnly swear that I am a citizen of the state of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the suit (describing it) which I am about to commence (or which I have begun, as the case may be) and that, to the best of my belief, I am entitled to the redress which I seek by such suit.'" *238
It is a familiar rule of construction that all statutes bearing upon a subject involved in a controversy are to be construed together, and the legislative purpose deduced from the whole. Construing these two statutes together, we are of the opinion that section 663 of the Code of 1930, considered with the above statute, section 3406, and section 24 of the state Constitution of 1890, gives the right to a person who is unable to pay the costs to have the mandate issued, where such person has recovered a judgment in a court of original jurisdiction, and such judgment has been appealed from by his adversary and reversed in this Court, the reversal leaving the case in the same situation as before rendition of judgment. A person whose rights are involved in controversy is entitled to access to the proper court of original jurisdiction, to a judgment settling his rights, and for the processes of that court to enforce the rights so adjudicated. But a person is not entitled to appeal from the judgment of a court of original jurisdiction to the Supreme Court of the state, or to an appellate court, without complying with the conditions authorizing an appeal to be made. Woods v. Davidson,
We have dealt with the construction of sections in several decisions, but none of them have presented precisely the question here involved. In Meeks v. Meeks,
What was said in that case was in reference to the rights of a person to one complete trial in a court of original jurisdiction, with process to render the judgment effective where such party obtains a judgment. It does not give a right to appeal in forma pauperis. Woods v. Davidson, supra.
In DuBois v. Thomas,
In Bond v. Hattiesburg American,
In the conclusion of the opinion in this case the Court said: "A rule for security of costs may be complied with by filing an affidavit of poverty, section 663, Code 1930, and no claim of prejudice to the appellee by the delay in complying with the rule was made in the court below, and no such prejudice appears. It is true that the delay was for almost a year, but the appellee could have speeded the final determination of the matter by a motion therefor, and in Mississippi A.R. Co. v. Ballard et al., 5 Smedes M. 606, the rule for security of costs was made at the September, 1840, term, and an offer to comply therewith was not made until the December, 1841, term, nevertheless, the Court held that the compliance with the rule should have been permitted."
In none of the cases heretofore decided has it been held that the appellee could not make the affidavit of poverty in order to secure the mandate, so that his cause of action might be tried in due course of law. Under the facts of this case we hold that the affidavit of poverty required the issuance of a mandate, and the same is hereby directed.
Motion sustained.
Dissenting Opinion
I dissent from the holding of the majority in this case. By the opinion, the losing appellee, by filing an affidavit of poverty, as set forth in section 663, Code of 1930, thereby obtains the order of this Court requiring the clerk thereof to send down the mandate without the payment of the cost as provided in section 3406. The applicable *241
part of this section is the same as section 1442 of the Code of 1880. When construing that section, this Court said in the case of Mobile Ohio Railroad Co. v. Watly,
When sections 655, 656, 658, and 663, are read and construed together, it is patent that the Legislature has not to this date enacted a statute permitting a losing party to file an affidavit of poverty in the Supreme Court of the State, and thereby evade the positive mandate of section 3406, Code of 1930. In the Watly case, supra, no exception was made. The statute was construed as positive and certain, with no exceptions thereto. Since that decision, this statute has been re-enacted several times. There has never been an effort on the part of the Legislature to provide for poor persons to sue without security for costs, except in trial courts, as demonstrated by the sections to which we have referred. In the case at bar, the alleged poor person, who now files his affidavit of poverty in this Court, forced the appellant to appeal to this Court in order that a judgment wrongfully rendered might be vacated. He followed this appeal and undertook to enforce the invalid judgment in the face of the decisions of this Court, and so far as costs are concerned, the judgment was final.
It is my conception of the sections quoted above, and especially section 663, that the provisions made are for a poor person to have the benefit of a trial in the various trial courts of this state, and if he undertakes to avail of the process of this Court, he must comply with the *242 statute relative to costs applicable to cases disposed of in this Court.
Although section 3406, or its equivalent, has been on our statute books for nearly sixty years, no such procedure has ever been attempted, save in one instance hereinafter referred to. Our records show that in 1933, in the case of Willie G. DuBois v. R. Thomas, No. 27,833, the losing appellee in this Court filed a motion to suspend Rule 29, and in connection therewith a pauper's affidavit contended that such procedure was permissible in the Supreme Court. The case was fully briefed and the motion was by this Court overruled without written opinion. In that case, the movant had recovered a decree for $253,000 which had been four years before reversed by this Court. The appellant, Mrs. DuBois, secured the reversal on a question of the admission of evidence and the case was remanded for another trial. The appellee, Thomas, could not be made to pay the costs. Mrs. DuBois thereafter paid the costs, and upon the pauper's affidavit, this Court declined to order the mandate sent down to the lower court. The decision on this motion was handed down on June 12, 1933, by Chief Justice Smith. The briefs did not fail to present the argument now adopted as to section 24 of the Constitution of 1890, and I think is authority in this Court under the circumstances. If and when the Legislature provides that an affidavit of poverty may be filed in the Supreme Court in order to have the mandate go down to the lower court, and the machinery is provided for determining whether the party so making the affidavit is entitled so to do, will be time enough for this Court to enforce such a rule.
I am of the opinion that the motion should be overruled. *243