Kramer v. Holster

55 Miss. 243 | Miss. | 1877

Campbell, J.,

delivered the opinion of the court.

The appeal from the judgment of the justice of the peace, after' the expiration of five days from the date of the judgment, was void, and did not vest the Circuit Court with jurisdiction to try the case. Code, sec. 1332.

The prescribed time is a limitation of the jurisdiction of the Circuit Court, and is not a mere statute of limitations to be pleaded by the opposite party. No citation or notice is provided for in such appeals. The right to appeal is given, to be exercised, upon prescribed terms, within five days, during which the other party is supposed and required to be cognizant of an appeal taken ; but an appeal taken after the five days is without notice in law to the opposite party, and is to be disregarded, as in no way having affected the judgment of the justice of the peace. Therefore the judgment of the Circuit Court on this appeal, described in the petition for supersedeas , was void, and the execution issued upon it was void.

It was proper for the circuit judge to order the execution, described in the petition, to be stayed. Every court possesses the inherent power to prevent an abuse of its process. Freem. on Ex., sec. 32; Harrington v. O’Reilly et al., 9 Smed. & M. 216. Our statute (Code, sec. 533) authorizes the judges of the Circuit Courts to order the issuance of writs of supersedeas * ‘ in all cases where the same may properly be granted, accord- • ing to right and justice; ’ ’ but the practice in granting and proceeding with such writs is not regulated by statute. There is no provision for a bond in case of staying an execution, or for a summons or notice to the opposite party. The terms of granting a stay of an execution may be fixed by the judge who-grants it, and the proper mode of proceeding must be determined upon general principles. Undoubtedly, a party’s rights cannot be affected without notice. His execution should not be quashed, or his judgment vacated, without notice ; but in this case the petition for a stay of execution avers that the plaintiff in the execution was dead at the time of the rendition of th¿ judgment, and that there was no revival of the suit in the name of a personal representative — but that judgment was given in favor of the dead man. If this be true, prima faci& there was no one upon whom to serve a notice. The death of the plaintiff revoked his appointment of an attorney, and the defendant in the execution found himself about to be annoyed by the levy of an execution unlawfully issued, but which he was denied the right to contest, because of the want of some one on whom he could serve notice of his proceeding — if it be true that he could not maintain his petition without notice to the plaintiff or his attorney. This position is not maintainaale. Moore & Cocke v. Bell, 13 Ala. 459; Wagnon v. McCoy, Exr., 2 Bibb, 198.

The execution in this case was properly stayed upon the .averments of the petition, and- it should not have been dismissed on the motion of the amicus curios. If the plaintiff in the judgment is not dead, he can appear and contest the petition, and move to discharge the supersedeas, on the face of it, •or cause an issue to be made up to try its truth; and, if the plaintiff is dead, his personal representative can do likewise. If the petition states the truth, no wrong is done by a continued staying of the execution.

In the position in which the defendant in the execution found himself, as shown by his petition for a supersedeas, he could do no more than apply to the circuit judge to relieve him from the writ wrongfully issued against him ; and, having obtained a stay of execution, he could take no further step for want of some one in being on whom to serve a notice.

A motion to' quash this execution was unnecessary, and would have availed nothing if heard and sustained. The complaint against the execution is for want of a valid judgment to •sustain it. Quashing an execution is no bar to a subsequent ■execution. The better course for the defendant is to procure .an order, if he can, vacating the void judgment, so as to save ■himself from further executions upon it; but if he sees proper •to take the risk of this, and to apply for an order to stay the execution as often as one may be issued, no law denies to him the right to pursue this course. The judgment cannot derive any validity from the defendant’s inaction. Time will not improve it or cure its defects. This opinion assumes the truth of the petition, and the conclusion is that the judgment dismissing it is erroneous, and is reversed, and cause remanded for further proceedings.