Roberts v. Weiler

52 Miss. 299

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The only question demanding consideration is, whether the" circuit court acted properly in sustaining the motion to dismiss the appeal from the justice’s court, upon the ground that said appeal had been prosecuted by one of three defendants against whom a joint judgment had been rendered in the magistrate’s court.

Undoubtedly the motion to dismiss was properly sustained,. if appeals from justices’ courts are to be assimilated, in all respects, to those prosecuted from the circuit court to the supreme court. The authorities on this subject, previously somewhat conflicting, are reviewed in Whitworth v. Carter, 41 Miss. 639, and the conclusion reached that, where only one of several joint judgment defendants in the circuit court appeals to this court, the appeal must be prosecuted in the name of all, and writ of summons and severance issued hero as to those not joining ; and that where the appeal is prosecuted in the name of one alone it will be dismissed here, but with leave to the appellant to apply here for a writ of error de novo, upon which the writ of summons and severance will be awarded.

Several considerations induce us to hold that this rule does not apply in the circuit court to appeals from justices’ courts. Such proceedings are from courts where everything is conducted ore tenus, usually without the assistance of lawyers or clerks, and not under the supervision of magistrates learned in the law. No writ of error or citation on appeal is necessary. Tbe dissatisfied party is only required to file an affidavit giving notice of bis dissatisfaction, and of his desire for a trial ele novo in the circuit court, and this, accompanied by a bond, operates as an appeal, without service of supersedeas, or any notice whatever to the opposite party. We think that any one of several defendants, desiring to do so, may exercise this right without being required to formally join the names'of his co-defendants in his affidavit. Indeed, it might be impossible for him to do so, inasmuch as he is required to swear that injustice has been done by the judgment- — an opinion in which his co-defendant may not concur.

The main reason why this course is not permissible in appeals to this court is that b}'- it the successful party below might be harrassed by repeated appeals, successively prosecuted by his several adversaries, within the three years limited for such appeals. This reason loses its force in the justices’ court, where all appeals must be taken within five days of the rendition of the judgment. “Oessante ratione, cessat ipsa lex.”

Appeals taken only by a portion of the parties litigant will not affect the rights of those who join neither in the affidavit therefor nor in the bond. The judgment in the justice’s court will stand as to them.

In the case at bar two of the parties defendant joined in the bond, though only one made the affidavit. A third defendant joined in neither. The appeal will be considered as applying to both signers of the bond.

The judgment of the court below, dismissing the appeal, is reversed, and this cause remanded with writ of procedendo.