Williams v. Williams

78 So. 152 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

Appellee instituted an action of replevin against appellant in a court of a justice of the peace for the recovery of several articles of personal property alleged to be wrongly detained from her. The affidavit upon wbicb the writ was issued was sworn to before the justice of the peace, but was not signed by appellee, and failed to allege either in the aggregate or in detail the value of the property sought to be recovered. The writ was executed by a constable, who, in his return, valued each article separately, the total of which was fifty-eight dollars and fifty cents. When the cause came on to be heard before the justice of the peace the following judgment was entered, omitting the formal parts:

“It is therefore considered by the court and so ordered and adjudged that the plaintiff, Mary Williams et al., do have and recover of and from the defendant, Mary A. Williams, that certain household furniture, etc., which was seized by'the officer in this'cause, and that the same be delivered to her by the officer of this court. It is also adjudged that the defendant, Mary A. Williams, pay the costs. herein. It is further ordered that in default of the delivery of the said property that plaintiff, Mary Williams, do have and recover of and from A. A. Chaney and C. Gf. Maas two hundred dollars and all costs in this behalf expended, for which let execution issue.”

Afterwards the record was certified to the circuit court by the successor of the justice of the peace who rendered the judgment, in response to a writ of certio-rari issued. in accordance with section 90, Code 1906 (section 72, Hemingway’s Code). Included in this record is a bond for an appeal to the circuit court, bearing a date within the time allowed therefor, but on which there was no indorsement of approval by the. justice of the peace. When the cause came on to be heard in the circuit court a judgment was entered reciting that:

“This day came on for hearing the petition for writ of certiorari, and the court, having heard the evidence and considered the same, doth deny the prayer of the petition.

“It is further ordered that writ of procedendo issue herein, and that said defendant and A. A. Chaney and T. D. Marshall, sureties, pay all costs incurred, to be taxed, for which let execution issue.”

This judgment seems not to, be technically correct, for the reason that the prayer of the petition, which is simply for a writ of certiorari directing the justice of the peace to send up ■ the record, was granted when the petition was presented to the circuit judge and the writ directed by him to be issued. The proper judgment to be entered upon a proceeding of this character is either one of affirmance or of reversal of the judgment of the justice of the peace; and in case of a reversal the court should “enter up such judgment as the justice ought to have entered, if the same be apparent, or may then try the cause anew on its merits.” Section 90, Code 1906 (section 72, Hemingway’s Code).

The defects in the proceeding before the justice of the peace, claimed to be apparent on the face of the record, are: First, the affidavit was not signed by the affiant. Second, the value of the property sought to be recovered, either in the aggregate or of each separate article, is not set forth in the affidavit. Third, the judgment fails to in any way set forth the value of the articles sued for, the value of each of which should have been separately assessed therein. Appellant álso contends that the failure of the justice of the peace to approve the bond was without justification, and that it should have been approved by the court below and the trial proceeded with as an appeal proper. This contention is not presented by the record, for it contains no evidence whatever bearing thereon.

The signature of the affiant is n-ot essential to the validity of an affidavit, unless expressly required by the statute under which it is made and section 4214, Code 1906 (sec. 3043, Hemingway’s Code), which here governs, contains no such requirement (Redus v. Wofford, 4 Smedes & M. 579; Brooks v. Snead, 50 Miss. 416; Words and Phrases, First Series vol. 1, p. 244; Id., Second Series vol. 1, p. 148).

The affidavit and judgment were both defective because of the failure of the first to set forth and of the second to assess separately the value of each article sued for. Section 4214, Code 1906 (section 3043, Hemingway’s Code); eases cited in 3 Mississippi Digest (Bobbs-Merrill) p. 679, par. 96. Wq are hot here called on to decide whether or not the omission from the ■affidavit of the'value of the property would of itself alone have necessitated the reversal by the court below of the judgment rendered by the justice of the peace if the value thereof had been properly assessed in the judgment rendered by him, for,' without reference to that question, the judgment should have been reversed because of the error in not assessing therein the value of the property sued for, the value of each article of which should be separately assessed.

The judgment is also 'alleged to contain other defects, but nothing could be accomplished by a consideration thereof, for the reason that it must be reversed in toto .and a new trial awarded in the court below.

Reversed and remanded.