Weddell v. Seal

45 Miss. 726 | Miss. | 1871

Tabbell, J.:

The appellant was prosecuted before a magistrate of the county of Chickasaw, by appellees, Jerry Seale and Ann Seale, administrator and administratrix of Jesse Seale, deceased, to recover the amount due on a promissory note, or, as the complaint describes it, a “true bill,” purporting to be executed by the appellant. Judgment was rendered by default. An appeal was taken to the circuit court, wherein the same was dismissed. Thereupon the appellant filed his bill of complaint in the chancery court of Chickasaw county against the plaintiff in the judgment, making the sheriff a party, setting forth the judgment, appeal, its dismissal, issuance of execution upon the judgment, and delivery thereof to the sheriff, who was about to enforce the same by levy upon and sale of the property of the defendant therein. No reason is given in the bill why the complainant did not defend the suit before the magistrate. The appeal is stated to have been dismissed “ for want of proper affidavit,” and “that the only imperfection in said affidavit was the failure of the justice before whom the same was made to insert the date thereof.” The bill states “that, in all other things, the said affidavit, * * * was regular and ample;” and that, “all the proceedings had touching said appeal, with the aforesaid exception, were regular and in conformity to law, and, in regard to said omission,” the complainant “was not in fault.” The bill further avers that the complainant “never executed the true bill aforesaid, nor authorized any one to make or execute the same.” The judgment is alleged to be unjust, oppressive and in fraud of the rights of complainant, and contrary to equity and good conscience. Claiming to be without remedy at law, an injunction is prayed for restraining the collection of the amount due on the judgment, and from doing any act to enforce the same, and for general relief suited to the case. The defendant therein demurred to the bill, stating, for causes of demurrer, that the bill is wanting in equity on its face; that the bill stows that the complainant had a fuil and adequate remedy at law, and shows no sufficient reason why he did not avail himself of his defense ; that the bill seeks for a court of chancery to review and correct the judgment of a court of law; that the bill does not deny that the said sum of money was not justly due; that the bill does not state the residence of defendant therein; and that the bill shows that if there is any remedy for the complainant it is at law, and not in a court of equity. The demurrer was sustained, the injunction dissolved, and the bill dismissed; from which decree the complainant prayed and obtained an appeal to this court, wherein the action of the court aforesaid is assigned for error. Referring to art. 23, Code, 409, it will be seen that “either party may appeal to the circuit court of the county from the judgment of any justice of the peace not rendered on the verdict of a jury: Provided, such appeal shall be demanded, and bond given, within five days after the rendition of the judgment, and an affidavit filed that such appeal is not made for delay, but that justice may be done.”

By art. 24, “ the justice of the peace from whose decision an appeal shall be prayed,” shall “transmit to the clerk of such court a certified copy of the record of the juoceedings, with all the original papers and process in the case, and the original appeal bond and affidavit given by the appellant,” and “the justice shall, at all times, be allowed to amend his return according to the facts, and, if the appeal bond shall be defective, the appellant shall be permitted to give a new bond.” * * * The complainant states in his appeal, that his appeal was dismissed simply and solely on the ground that the magistrate failed to insert in the affidavit the date of its execution, in all other respects the appeal being according to law. Art. 24, above quoted, declares, that “the justice shall, at all times, be allowed to amend his return according to the facts.” The bill alleges no petition or motion in the circuit court for an order permitting or requiring the justice “to amend his return according to the facts; ” nor does it appear that the complainant resisted the motion to dismiss, or in any way sought to have the affidavit amended or corrected, or that he took any steps to perfect his appeal in any mode whatever. In view of the regularity of the appeal in other respects, the failure of the justice to insert the date of making the affidavit was of minor importance. The justice could have inserted the date at any time before returning it to the circuit court, or the latter court would have permitted its insertion as a matter of course, the affidavit having, in fact, been made and filed in proper time, which the return of the justice would show; or, if it did not, it and the defect in the affidavit could have been amended “according to the facts.” The test of the appeal is, that it be demanded and bond given within five days after the judgment, “ and an affidavit filed.” It must appear that the demand was made, bond executed and affidavit filed, within the period named, but the omission of the date of making the affidavit does not, by any means, show that it was not “filed,” or that it was not made within the time required, the appeal being otherwise unobjectionable.

The circuit court, as we have seen, was possessed of ample power to protect the rights of the party, first under article 24, supra, and, generally, with a view to the justice of the case, which it has been held, in numerous cases, should be liberally exercised. In the absence of any allegations upon this point we cannot presume the circuit court to have denied an application to amend in a case so clearly within its authority to grant. No complaint is made of the action of the circuit court in this respect. In fact, it is apparently conceded by the bill to have been correct, and, if we understand the complaint correctly, was not resisted, which is rather extraordinary. As we understand the bill, the defense to the suit before the justice is stated with unusual caution and reserve, thus: “ That complainant never executed the true bill aforesaid, nor authorized any one to make or execute the same.” It is added: “That the j udgment obtained as aforesaid upon the grounds as aforesaid is unjust, oppressive, and in fraud of complainant’s rights, and should not in equity and good conscience be enforced. ’ ’ These paragraphs contain the only reference in the bill to the merits of the case. The non-indebtedness of the complainant to the plaintiffs in the judgment is not charged. This case then is this:

1. The complainant made no defense before the magistrate. As he had a right to do, he, perhaps, chose to reserve his case, to be developed on appeal. Nevertheless, he had his day in the magistrate’s court, of which, for reasons not disclosed in the record, he purposely omitted to avail himself.

• 2. The appeal was dismissed, as is represented, for no other reason than that the justice failed to insert in the affidavit the date of its execution. In every other respect the bill says the appeal was perfect. No opposition to the motion to dismiss, not request to amend, is averred. The law is too plain to suppose the court would have dismissed the appeal, except with the acquiescence or gross neglect of the complainant. No complaint is made of the action of the court. He, therefore, had his day in the circuit court, and again failed to avail himself of his rights, without showing any excuse for this further neglect. A party cannot seek relief in equity for a wrong produced by his own negligence. 23 Miss. 406; ib. 407.

The decree is affirmed,..