47 Miss. 228 | Miss. | 1872
This case originated in the magistrate’s court of Scott county, whence an appeal was taken to the circuit court of that county, where the appeal was dismissed, and thence to this court by writ of error. The only error assigned is, that the circuit court erred in dismissing the appeal. The record is brief, and is as follows: 1. The caption; 2. Bill of particulars of the claim of Pettus & Stevens against Patterson; 3. A certificate of the magistrate that Pettus & Stevens
The appeal in this case was taken under ch. XI, laws of 1870. Section 7 of that act provides: “That either party may appeal to the circuit court of the county from the judgment of any justice, whether rendered on the verdict of a jury or not; provided such appeal be demanded and bond given within ten days after the rendition of the judgment.” Section 8 of the same act declares, “ that all the provisions of chapter LVIII of the Revised Code of 1857, and all laws enacted since the adoption of said code, relating or pertaining in any manner to the duties or jurisdiction of justices of the
Art. 23, of ch. LVIII, Code of 1857, provides for appeals from the judgment of justices of the peace not rendered on the verdict of a jury, provided such appeal be demanded and bond given, and an affidavit filed. Art. 24 directs the justice, from whose decision an appeal shall be prayed, to transmit to the circuit court, “a certified copy of the record of the proceedings, with all the original papers and process in the case, and the original appeal bond and affidavit given by the appellant.” It is further provided that the justice shall at all times be allowed to amend his return according to the facts.
In the absence of an application for a further return, we do not well see how the circuit court could have done otherwise than sustain the motion to dismiss. The record presented here shows an almost total disregard of the statutes regulating appeals. There was clearly no affidavit filed; there was no “ certified copy of the record of the proceedings ” before the magistrate, “ with all the original papers and process in the case,” sent up to the circuit court; it is not certain, from the record, that the original bond or appeal was transmitted, but that a copy might have been sent up instead; and it is quite certain that no original affidavit was so transmitted. It is too late to apply for an amended return. We have no power to grant such an application; and in view of the manifest defects in the records and papers upon which the circuit court based its action, there seems to be no other alternative than to affirm the judgment, which is accordingly done.