Xydias v. Pellman, 83 So. 20

Xydias v. Pellman

83 So. 20 | Miss. | 1919

Lead Opinion

Sykes, J.,

delivered the opinion of the court.

The appellee, plaintiff in the lower court, filed suit against two parties in a justice of the. peace court of Forest county . Judgment was rendered in favor of the plaintiff, and the defendants prosecuted an appeal to the circuit court. The appellant, A. J. Xydias, was one of the sureties on the defendants’ appeal bond. The justice of the peace transmitted the papers to the circuit cleric, but failed to attach his certificate of the record as required by section 64 of Hemingway’s Code (section 84, Code of 1906). The case was tried in the circuit court. A judgment was again rendered in favor of the plaintiff and against the defendants and this surety on the appeal bond. Subsequent to the adjournment of this term of court an execution was issued on this judgment. The appellant filed a motion in the circuit court to quash this execution, and also filed a motion to vacate and set aside the judgment against him in the circuit court, because of the want of jurisdiction in the circuit court to render this judgment. At the hearing of these motions of- the appellant the justice of the peace who originally tried the case testified that the papers sent up by bim were the original papers in the suit, and, over the objection of' appellant, was allowed to certify to the papers in accordance with the above section of the Code. This certificate was made on his bill of costs. This certificate, while not exactly in accordance with the wording *408of the above section of the Code, is a substantial compliance with the same. The two motions of the appellant were then overruled by the circuit court and appellant appealed therefrom.

This court has repeatedly held that, where a justice of the peace has failed to certify his record as required by section 84, Code of 1906 (section 64, Hemingway’s Code), the circuit court is without jurisdiction to try the case or render judgment therein. Ruff v. Montgomery, 83 Miss. 184, 35 So. 465; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Gardners Railroad, 78 Miss. 640, 29 So. 469; McPhail v. Blann, 47 So. 666; City of Greenwood v. Weaver, 96 Miss. 604, 50 So. 981; Allen v. State, 98 Miss. 192, 53 So. 498; Cawthon v. State, 100 Miss. 834, 57 So. 224. This court has also held that the want of such a certified copy is not a defect Avhich may be cured or waived, that it is jurisdictional, and that without this certificate the circuit court cannot proceed with the case. Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481.

The circuit court being without jurisdiction to render judgment against this appellant, because of the failure of the justice of the peace to properly certify his record to the circuit court, it necessarily folloivs that the amended or proper certificate of the justice of the peace, made after the rendition of the judgment, could in no wise relate back to the- time of the rendition of the judgment and give the circuit court jurisdiction at that time. It could have no such retroactive effect The appellant’s course in making these motions was proper, and both motions should have been sustained. Kramer v. Holster, 55 Miss. 243.

The proper certificate now having been made by the justice of the peace, the circuit court now has jurisdiction to try this cause, and it stands as a pending-cause in that coui’t.

Reversed and remanded,

Dissenting Opinion

Stevens, J.

(dissenting).

The opinion of the court in this case is apparently-justified by precedent, but the result reached so wounds my feelings of justice that I am compelled to withhold my assent. “That codeless myriad of precedent, that wilderness of single instances,” has driven the court to a result that is wrong. The conclusion reached by the court, not only attempts to follow precedent, hut, in my judgment, carries the force and effect of precedent a step' too far. It will be observed that the court is now holding that a judgment rendered by the circuit court i's absolutely void because of the fact, and the one fact alone, that the certificate of the justice of the peace in transmitting the record to the circuit court was a defective certificate. It ivill he observed, further, that the defendants, who lost the case in the justice court, themselves prosecuted the appeal to the circuit court, and the duty was upon them to perfect the record. Instead of perfecting the record, and having the justice of the peace attach a valid certificate, they went to trial in the circuit court without objection, lost their case, and prosecuted no direct appeal to this court. They waited until the sheriff attempted to execute this judgment before raising any question as to the infirmity of the record. It affirmatively appears that there was an appeal bond approved by the justice of the peace, and there was a substantial record of some kind in the circuit court. There is no suggestion or contention that no appeal bond was given and that no record was before the circuit court. It is merely a case of an imperfect certificate to the record.

In a great many of the cases in which this point has been relied upon it affirmatively appeared that there was no appeal bond and no record of any kind. In other cases heretofore disposed of by our court, an objection was made in the circuit court based upon the *410improper record. In all of the cases heretofore adjudicated the question was presented to this court on direct appeal. This is the first case in which the judgment has been attacked collaterally, on the ground that the circuit court was absolutely without jurisdiction, and consequently that the judgment rendered by the circuit court was void. There is language of this court in Rogers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481, which justifies such holding. But the Rogers ’ Case presented a direct appeal to this court. In the case at bar there has been no direct appeal from the judgment complained of, but, as stated, a collateral attack is made upon this judgment. This, in my judgment, is carrying the question of jurisdiction beyond any adjudicated case, and giving to an alleged want of jurisdiction a far-reaching and dangerous result.

I have been taught that a valid appeal bond in accordance with the statute confers jurisdiction. .Jurisdiction in the case at bar is made to turn, not only upon the presence of a record, but a perfect record. I do not dissent from the general proposition that a time and a place to make the complaint. In prosecuting defective record can be complained of, but there is an appeal from the circuit court to the supreme court, it is the valid appeal that confers jurisdiction, and it frequently happens that this court dockets and dismisses appeals where there is absolutely no record at all. I am afraid the court has confused technical jurisdiction and a fundamental defect in pleading and practice. All the text-writers and adjudicated cases hold that a final judgment, unappealed from, cannot be collaterally attacked as void, where the court had jurisdiction of the person and the subject-matter.

In the case at bar the parties were present before the court and tried their case, so undoubtedly the court had jurisdiction over the person. I prefer the view that the court had jurisdiction of the subject-*411matter. There was an actual trial, a real issue, and all based upon a substantial record. Suppose it were a criminal case, and the defendant was convicted, and had accepted the final judgment of the circuit court and had worked out his sentence at hard labor. The result which the court has reached would deny such an accused the benefit of a former adjudication, in event he were indicted for the same crime for which he had been tried, convicted, and suffered. “Summum jus, summa injuria.”