Pearson v. Wilson

57 Miss. 848 | Miss. | 1880

Campbell, J.,

delivered the opinion of the court.

The appeal by Pearson from the finding of the jury before the justice of the peace was void, because he gave no appeal bond, which was a condition precedent to an appeal. The bond prescribed by Chancellor Fly, and approved, by him, to operate as a supersedeas, is not an appeal bond or a substitute for it. The Circuit Court properly refused the application for leave to amend the appeal, by giving a proper appeal bond. The act of March 5, 1878 (Acts 1878, p. 173), requires, as a condition of the right of appeal, the giving of a bond, within five days, “ in the sum of three hundred dollars, to be approved by the justice, payable to the opposite party, conditioned for the payment of all costs.” This requirement is unaffected by the act of March 2, 1880 (Acts 1880, p. 125), which provides for the appeal to operate as a supersedeas upon terms therein prescribed. No appeal bond having been given, or attempted to be given, there was nothing to amend. A defective appeal bond might perhaps have been amended, but the entire failure to give one could not be supplied by the Circuit Court. To do that would be to acquire jurisdiction by the action of the Circuit Court, whereas the law requires that an appeal prayed, and an appeal bond approved, by the justice, within five days, shall give jurisdiction of the case to the Circuit Court.

Reasons, the justice of the peace before whom the proceeding to contest the election was instituted, by virtue of his reelection to the office at the general election in November, 1879, and his attempt to qualify, and bis continuance in possession of the office and exercising its functions, is to be considered as capable of the performance of valid official acts binding as such on all persons interested therein. The justice of the peace and all concerned did right to obey the injunction. Although it was afterwards held to be void, and that it might have been safely disregarded, those who respected the command of the State, made with a show of authority, are not to be punished for taking the safe course of obedience to its process. The interruption of the proceedings and suspension of the functions of the tribunal engaged in the process of organization for the trial of the contest, by the service of the injunction, did not destroy or extinguish it. The effect was as if a night or a non-judicial day had intervened. The proceedings were interrupted, not abandoned. The tribunal about to be organized was hindered, not destroyed. As soon as the hindering cause was removed, or what seemed to be a hinderance was found to be no real obstacle, it was proper to proceed as if nothing had occurred to interfere with the proceeding.

The official bonds presented by Wilson for approval on Feb. 16 and on May 17 were in time. The election being contested, the requirement to qualify within a prescribed time did not apply until the termination of the contest. We perceive no obstacle to the induction of Wilson into the office. The proper officers should proceed, without delay, to examine and approve the bonds required by law and presented by him for approval. The tribunal provided by law for the trial of the contest of the election, although hindered and delayed by shrewd devices, under color of legal process, at length proceeded with its duties, and a jury found that Wilson had the greatest number of legal votes at the election. This is the mode prescribed by law for ascertaining who had the greatest number of legal votes, and the finding must be respected as true, until reversed in the manner provided for by law. That manner is by appeal to the Circuit Court, to be taken in a prescribed way. It is the misfortune of Mr. Pearson that there was misapprehension as to the requirement of law for taking an appeal, and that, by non-observance of the law applicable to his case, he lost the opportunity afforded him by law to test tbe correctness of the finding of the jury. This is no more than has often occurred to other litigants, and though much to be regretted is without remedy in his case as in any other. Such is the law applicable to all alike, and it is the duty of all citizens to uphold and maintain it, as in it is found' the safeguard of the rights of every one.

Judgment affirmed.