Mann v. Lowry

58 Miss. 73 | Miss. | 1880

Chalmers, C. J.,

delivered the opinion of the court.

The executrix brought her action of replevin in a justice’s court, and, having been there defeated, appealed to the Circuit Court without giving bond. A motioix by the defendant in that court to dismiss the appeal was overruled upon the ground that executors and administrators were not required to give appeal-bonds, and, a trial de novo being had, which resulted in a judgment for the executrix, the defendant appeals to this court.

We examined, in Campbell v. Doyle, 57 Miss. 292, the question of whether executors and administrators could appeal without bond, and reached the conclusion that they must give bonds for costs, which, when given, operate to supersede the judgments appealed from. The decision was based upon the principle that, while the requirement of a supersedeas-bond applied in terms to all appellants, it must be construed as trot embracing executors and administrators, because they, being exempted by other clauses of the statute from any personal liability beyond the assets in their hands, could not be compelled to execute bonds which would impose such liability. As to cost-bonds, however, the reason ceased and the law with it. Being always personally liable for costs, they must execute bonds therefor like other appellants. The decision had reference to appeals to this court, as to which two classes of bonds are prescribed, to wit, cost-bonds and supersedeasbonds. We are met now with the same question in reference to appeals from the justice’s court, as to which one bond only is provided, which by its terms, as fixed by statute, operates as an indemnity both for costs and for the judgment to be pronounced by the Circuit Court.

The statute is imperative in making the giving of this bond a condition precedent to the granting of the appeal, and it has always been regarded as so jurisdictional in its character that, in the absence of any attempt to give it, the Circuit Court was without power to try the case.

We cannot disregard the statute which requires this bond to be given by all appellants, nor can we alter the phraseology prescribed by law. It must be executed in the same penalty and conditioned for the payment-of “ such judgment as the Circuit Court may render against him ; ” but, as the law prohibits the imposition of any personal liability except for costs, the Circuit Court must conform its judgments to the law, and in case of affirmance render judgment on the bond only for costs, except in cases where it is a judgment in rem, for the return of property, or for payment of its alternate value.

The judgment of the Circuit Court is reversed, and this court, rendering such judgment as that court should have rendered, dismisses the appeal from the justice’s court.