Xydias v. Pellman

83 So. 20, 121 Miss. 400

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20962
• Status: Published

Opinions

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 of 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,