Simpson v. Boykin

79 So. 852 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

W. R. Boykin instituted a proceeding to dispossess T. C. Simpson as a tenant under the chapter of the Code on landlord and tenant. The affidavit recites that:

“T. C. Simpson was a tenant of affiant during the year 1917 on the land in Quitman county, Mississippi, described as follows:

“That certain land known as ‘the Redding Place,’ consisting of about one hundred and sixty acres of land in cultivation, in addition to such woodland and waste lands as are owned by J. T. Redding near Sledge, in said county, and situated two and one-half miles south of Sledge.

“The term of lease of tenant expired with the 31st day of December, 1917, and on the 1st day of January, 1918, affiant demanded possession of said lands from said tenant, which possession said tenant refused and refuses to give, and is now holding over and continuing in possession of said premises, after the expiration of his term, without the permission of affiant. The said tenant also agreed to pay rent for the year 1917 in the sum of nine hundred dollars, which' sum he has .not paid, or any part thereof, and is now wholly in arrears and in default of the said sum of nine hundred dollars due to the affiant for the rent of said land for the year 1917. Affiant therefore brings this action to remove the said T. C. Simpson from the possession of the said land and to recover the possession of the said land from the said tenant.”

Upon this affidavit a writ was issued, commanding-said tenant to give possession or show cause, in accordance with the statute, at a day, fixed as the 10th day of January, 1918, as to why said possession should not be delivered to said Boykin. T. C. Simpson made affidavit that he was not wrongfully withholding possession of said land mentioned in the affidavit from plaintiff, and that he did not hold the possession of said land during the year 1917 as tenant of the plaintiff, and that the plaintiff is not now entitled to the possession of said land, and that he does not owe plaintiff any sum for said rent during the year 1917.

The trial was had before the justice of the peace issuing the. writ, and possession was awarded to the plaintiff; the judgment of the court reciting that, “ issue being joined and the arguing continuing for two days, and the court, having heard the evidence and argument of counsel, finds for the plaintiff that he is entitled to the possession of the premises in controversy,” reciting the description of the land in accordance with the original affidavit. This judgment was orally rendered at the conclusion of the trial on the 11th day of January, but was not actually entered upon the docket of the justice of the peace until the 14th day of January, 1918. On the 17th day of January, 1918, an appeal bond was tendered to the justice of the peace and approved by him to take an appeal to the circuit court. When the case reached the circuit court, a motion was made by the plaintiff to dismiss the appeal, because the bond was not presented to, or filed with, the justice of the peace within five days after the rendition of the judgment in the case by the justice of the peace. The motion to dismiss the appeal was sustained in the circuit court, and the defendant appeals here.

There are three contentions presented to us on appeal: First, that the statute of ten days for appeals from ordinary civil cases in a justice of the peace court applies in this case; second, if that statute does not apply, that they had five days from entry of the judgment on the docket ■ in which to appeal; third, the justice of the peace did not have jurisdiction to try and dispose of the cause, because the value of a year’s rental of the place in controversy would exceed the amount of a justice’s jurisdiction.

The statute upon which the suit here was instituted is section 2885, Code of 1906 (section 2383, Hemingway’s Code), which reads as follows:

“A tenant or lessee at will or at sufferance, or for part of a year, or for one or more years, of any houses, lands, or tenements, and the assigns, undertenants, or legal representatives of such tenant or lessee, may he removed from the premises by any justice of the peace of the county, or by the mayor or police justice of any city, town or village where the premises, or some part thereof, are situated, in the following cases, to wit:

“First. Where such tenant shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord.

“Second. After any default in the payment of the rent pursuant to the agreement under which such premises are held, and when satisfaction of the rent cannot be obtained by distress of goods, and three days’ notice, in writing, requiring the payment of such rent or the possession of the premises, shall have been served by the person entitled to the rent on the person owing the same.”

The affidavit in this case conforms to that required in section 2886 for the institution of the proceeding provided for in section 2885. Section 2895, Code of 1906, provides for appeals in this proceeding; said section reading as follows:

“The magistrate, before whom proceedings shall be had against a tenant holding over, - shall keep a full record of his proceedings, and shall carefully preserve all papers in the cause, and the same costs shall be taxed and paid as are allowed for similiar service in cases of unlawful entry and detainer, and the right of appeal shall exist as in such cases.”

Section 82, Code of 1906, provides that an appeal from judgment of unlawful entry and detainer shall be taken within five days after the rendition of the judgment by entering bond with sufficient sureties, etc. Section 83, Code of 1906, as amended by chapter 203, Laws of 1912, page 280, provides for the taking of appeals in civil cases before the justice of the peace within ten days after the rendition of the judgment. The question for consideration here is: When was the judgment rendered within the meaning of these statutes? Was it at the time the judgment was pronounced in open court, or was it when the justice of the peace actually entered and signed the judgment upon his docket?

In the case of Lunenberger v. State, 74 Miss. 379, 21 So. 134, this court held as follows:

“The entry of the judgment which had been rendered was merely clerical, and in this ease it is undisputed that the judgment was really rendered, and that a proper notation of the justice’s action was made in writing, and was transcribed in the docket two days later. ’ ’

The court refused to hold in this case that the judgment must be entered on the docket during the term of the court, holding that the entry was a mere clerical duty.

In case of Holley v. State, 74 Miss. 878, 21 So. 923, is was held that:

“If a justice of the peace tries a criminal case, of which he has jurisdiction, and enters his judgment on a loose piece of paper, and, after his court adjourns, transfers the entry to his docket, the judgment is not invalid. ’ ’

It would seem from these authorities that in this state the rendition of the judgment is the pronouncement of the judgment of the court *at the conclusion of the trial, and that it is not the -entry of the judgment on the docket that constitutes the rendition of the judgment. The pronouncement of the judgment in open court- is the judicial act which, while it must he entered on the docket, need not he done immediately. This seems to he the view of the great weight of authority in cases where it turns upon the meaning of the term “rendered.” Words and Phrases, First Series, vol. 7, p. 6082; Words and Phrases, Second Series, vol. 4. p. 266. It follows that the limitation begins to run from the- date of the announcement of the judgment on the 11th of January. The statute above quoted under the landlord and tenant chapter providing for appeals as in case of unlawful entry and detainer means that the appeal shall be taken within the time required for appeals in such cases as well as in amounts and other conditions. It follows that the appeal should have been taken not later than the 16th of January.

In regard to the jurisdiction of the court to entertain this suit, we think that the power of the justice of the peace in this case is a special statutory jurisdiction, deriving its force from legislation under section 172, Constitution of 1890, providing that:

“The legislature shall from time to time establish such other- inferior courts as may be necessary and abolish the same whenever deemed expedient.”

This suit does not involve a demand for the value of land or the value of possession for any given period of time, but only for possession; but, if the value of the use of the land applied, the only value to be found would be the value between the termination of the tenancy and the date of the judgment, which, in this case, would be only eleven days.

It follows that the judgment of the court below was correct, and is affirmed.

Affirmed.