Town of Purvis v. Rees

55 So. 481 | Miss. | 1911

Anderson, J.,

delivered the opinion of the court.

The appellee, S. E. Eees, sued the appellant, the town of Purvis, in a court of a justice of the peace, and recovered judgment by default, from which the appellant appealed to the circuit court, where the appeal was dismissed, on the ground that it had not been taken within five days from the rendition of the judgment, from which judgment of dismissal the appellant prosecutes an appeal to this court.

Judgment was. rendered by the justice of the peace on November 9, 1908. The appellant, for some reason not sufficiently explained, filed two petitions for appeal, either one of which is sufficient in spbstanee and form. Both petitions are dated November 10, 1908, and purport to have been signed by tbe justice of tbe peace who rendered the judgment. One of these petitions bad at its conclusion this: “Tbe foregoing petition received, filed, and granted by me this 10th day of November, 1908. [Signed] H. B. Freeman, J. P.” And tbe other: “Petitition filed and appeal granted this November 10th, 1908. [Signed] H. B. Freeman, J. P. ” On tbe motion in tbe circuit court to dismiss tbe appeal, tbe justice of tbe peace who rendered tbe judgment was introduced a sa witness on behalf of tbe appellee, and testified that be did not sign one of these petitions; that bis signature thereto bad been forged. As to tbe other, he admitted that he signed it, but denied that he bad signed it on November 10, 1908, tbe date it purported to have been signed, claiming that be signed it on November 16, 1908, more than five days after tbe rendition of tbe judgment in bis court.

Section 94, Code of 1906, dispenses with tbe necessity of municipalities giving appeal bonds; and section 95, Code of 1906, provides that in all cases where an appeal is desired from a judgment of a justice of tbe peace by a party who is not required to give bond therefor, a written demand for an appeal shall be filed in lieu of tbe bond required by others, within tbe time allowed for-appeals in such cases. Tbe testimony,- other than that of the justice of tbe peace, for tbe purpose of showing that neither of tbe petitions for appeal was filed within five days of tbe rendition of tbe judgment appealed from, was wholly insufficient; in fact, tbe testimony of tbe justice of tbe peace was all that really tended to establish that fact. In Duncan v. Gerdine, 59 Miss. 550, a deputy sheriff was held to be incompetent to give testimony contradicting tbe return made by him on a writ; and in Stone v. Montgomery, 35 Miss. 83, it was held that an officer, tailing and certifying an acknowledgment to a conveyance, was incompetent as a witness to impeach tbe statements of fact in bis official certificate.

Just above the signature of the justice of the peace (the one admitted to be genuine) to the. petition for appeal is the indorsement that the petition was filed and the appeal granted on November 10, 1908 (the next day after the judgment was rendered).' The justice of the peace was incompetent to impeach this indorsement or certificate; and this is true, whether it was written by him or by some one else, provided, of course, if written by some one else, it had been done at the time he appended his signature. In other words, by attaching his name and office to the petition with this indorsement on it, he was precluded from falsifying such indorsement. It follows that the cause was properly in the circuit court by appeal. Reversed and remanded„