Nations v. Lovejoy

80 Miss. 401

• Court: Mississippi Supreme Court
• Decided: March 15, 1902
• Status: Published

Opinion

Terral, L,

delivered the opinion of the court.

Mrs. Lovejoy sued Nations before Fudge, a justice of the peace of district No. 2 of Yalobusha county, for breach of duty to her, under § 1068, code 1892, in the sum of $100. Justice district No. 2 was composed of territory belonging partly to the first and partly to the second circuit court district of said county, and Nations resided in that part of justice district No. 2, which lay in the first circuit court district. The justice gave judgment against Mrs. Lovejoy, and she appealed her case to the circuit court. The appeal bond recited that Mrs. Lovejoy should appear and prosecute her suit in the second judicial district instead of the first; and she appeared in the circuit court at the courthouse in the secojnd judicial circuit court district, and there obtained a judgment, which was reversed on appeal here, because the appeal should have be:en to the circuit court of the first judicial circuit court district of feaid county. 77 Miss., 36 (25 South., 494). Thereafter Mrs. Lovejoy filed her appeal papers in the circuit court of the first circuit court district of the count}', amended her bond to that effect, and there had judgment against Nations for $75. At the last trial, § 1068, code 1892, had been superseded by chap. 102, acts 1900. Nations excepted to the action of the court in permitting an amendment of the bond so as to make the appeal be to the first, instead of the second, judicial district of the county; and this is one of the errors assigned. Another assignment of error is the giving of several instructions, at the instance of the plaintiff below, authorizing the jury to find double damages.

1. We think the amendment of the appeal bond was properly allowed. Sec. 91 of the code of 1892 expressly provides that defective appeal bonds may be amended, or that a new appeal bond may be given, as tbe case may require. The appeal bond was considered good by the justice, who approved it, and by the circuit court of the second judicial district, which gave judgment upon it, but it was adjudged defective on appeal here. Now, Mrs. Lovejoy applied in due time for he! appeal, and gave tire bond required by the justice for'that purpose; and the mistake made, whether that of the justice of the peace or of Mrs. Lovejoy, it would seem, the statute fully covers. . The amendment accomplished only justice, and it comes within the letter and spirit of the statute.

2. The instructions for double damages are erroneous. The double damages aluthotrized by § 1068, code 1892,, are repealed by chap. 102, acts 1900. Sec. 61 of the constitution provides that the section of the law amended shall be inserted at length in the amendment, and chap. 102, acts 1900, obviously leaves out the double damages authorized by § 1068 of the code of 1892, repealed by it. The amount recovered might pass for single damages, except for the instructions directing the jury to find double damages.

If one-half the damages be remitted, the case will be affirmed, at appellee’s costs; if not, the judgment will be reversed and the case remanded.