Rodgers v. City of Hattiesburg

55 So. 481, 99 Miss. 639

• Court: Mississippi Supreme Court
• Decided: March 15, 1911
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

The appellant, Rodgers, was convicted before the police justice of the city of Hattiesburg, under an ordinance of said city, of the unlawful sale of intoxicating liquors, and appealed'to the circuit court, where he was again convicted and prosecutes an appeal to this court.

On the appeal to the circuit court, the copy of the record of proceedings before the police justice was certified to by the city clerk, and not by the police justice. Sections 84 and 85, Code of 1906, as construed in City of Greenwood v. Weaver, 50 South. 98, and Allen v. State, 53 South. 498, required this certificate to be made by the police justice.

There was no motion made in the court below by appellant, or other steps taken, to have the police justice to properly authenticate the record of proceedings in his court; nor was there any motion made by the appellee to dismiss the appeal, on the ground that the police justice had not certified to such record. It is contended by the appellant for the first time on this appeal, that, because of the absence of a properly authenticated record of the proceedings before the police justice, the circuit court was without jurisdiction, and therefore this court is without jurisdiction of this appeal, and it follows that the judgment of the court below must be reversed. While it is contended on behalf of the appellee that, by failing to make the objection in the court below, the appellant is precluded from making it in this court, and to sustain this position it relies on the ease of Calhoun v. State, 86 Miss. 553, 38 South. 660, which so holds. In Ruff v. Montgomery, 83 Miss. 184, 35 South. 465; Ball v. Sledge, 82 Miss. 747, 35 South. 214; Gardner v. Railroad Co., 78 Miss. 640, 29 South. 469; McPhail v. Blann, 47 South. 666, and City of Greenwood v. Weaver and Allen v. State, supra, it was held that, in appeals from the courts of justices of the peace and police justices, a certified copy of the record of proceedings in such courts were indispensable to the jurisdiction of the circuit court. In McPhail v. Blann, supra, the supreme court dismissed the appeal of its own motion, because of the absence of a properly certified copy of the proceedings before the justice of the peace.

The want of such a certified copy is not a defect which may be cured or waived. It is jurisdictional. Without it, the circuit court cannot proceed with the cause. It is without jurisdiction, and on appeal to this court there is no jurisdiction here. The question of jurisdiction can be raised at any time. It may be raised for the first time in this court. The court, of its own motion, will dismiss an appeal where it has no jurisdiction. The case of Calhoun v. State, supra, was necessarily’ overruled by McPhail v. Blann, City of Greenwood v. Weaver, and Allen v. State, supra.

The judgment of the court below is reversed, and the cause remanded, with directions to the circuit court to dismiss the appeal to that-court, and award a writ of procedendo to the court of the police justice to enforce the judgment of his court, xinless the appellant shall perfect the record of proceedings from such police court.

So ordered. Reversed and remanded.