Campbell v. McCormick Motorcar Co.

*674 McG-oweN, J., delivered the opinion of the court. The appellee, McCormick Motorcar Company, filed its affidavit in the court of a justice of the peace in Jones county, alleging that Jesse Campbell, the appellant, was indebted to the McCormick Motorcar Company in the sum of one hundred thirty-two dollars and ten cents for a certain Ford automobile motor remaining in the possession of Campbell; that the motorcar company had a lien for the purchase money on said car. Thereupon a writ of seizure was issued by the justice of the peace, and was duly executed and served upon the. appellant. The writ was returnable before the justice of the peace on the 24th day of October, 1924, and on March 7, 1925, the justice of the peace dismissed the case at the costs of the plaintiff, the .plaintiff having failed to appear and the defendant being in court. The record shows that the McCormick Motorcar Company filed its appeal bond with the justice of the peace on the 23d day of March, 1925, more than ten .days after' the date of the rendition of the judgment — to be exact, sixteen days thereafter. The record was duly filed in the circuit court of that county, and Campbell, by his attorneys, moved to dismiss the appeal, because the appeal bond was not filed within the time allowed by law, which motion the court overruled, and the cause was continued to the February, 1926, term of court. The case was then tried and judgment rendered in favor of plaintiff for one hundred thirty-two dollars and ten cents against the defendants and the sureties on their bond, by which the defendants had obtained possession of the property. The only error assigned here by counsel for the appellant is that the circuit court erred in overruling his motion to dismiss the appeal, because the appeal bond was not filed within the ten-day period prescribed by the statute for taking appeals. The bond here, on its face, *675 was not filed within the statutory time allowed for an appeal. Section 63, Hemingway’s Code (section 83, Code of 1906) provides how an appeal may be taken from the judgment of a justice of the peace, and provides that such may be taken if appeal be demanded and bond given for double the amount of property involved within ten days after the rendition of the judgment. This court has repeatedly held that the time prescribed by the statute within which an appeal may be taken is a limitation of the jurisdiction of a circuit court; and, if the appeal be taken after the prescribed.time fixed by the statute has expired, there is no jurisdiction, and the appeal and proceedings thereon are nullities. Kramer v. Holster, 55 Miss. 245; Murff v. Osburn (Miss.), 24 So. 873; Underwood Typewriter Co., v. Taylor, 94 Miss. 584, 48 So. 15. However, it appears from the record in this case that the court, in overruling the motion to dismiss the appeal, entered the following order: “This day this cause came on to be heard on the motion of the defendant to dismiss, and said motion and the testimony thereon is by the court heard and considered, and said motion is by the court overruled. It is by the court, however, ruled that either party .may take additional testimony for or against said motion for the purpose of completing the record herein. (Italics ours.) “And this cause is by agreement of the parties continued for the term, and set for the 1st day of the February term, 1926-, of the court. ’ ’ It plainly appears that the court heard testimony in passing upon the motion, the nature of which the record does not advise us, because such testimony so taken is not in the record. We must assume that the testimony heard by the circuit court on this motion was influential with it in passing upon that question. The judge of that court had the advantage of testimony of which we are deprived because it was not made a part of the record. We are constrained to believe that the testimony *676 was of such, character, in view of the plain stipulation of the statute, as to control and guide the circuit judge to the judgment rendered. If the oral evidence could properly have been introduced, the court was authorized to overrule the motion to dismiss the appeal. In the case of Winner v. Williams, 82 Miss. 669, 35 So. 308, the appealing party gave the appeal bond to the constable of the court, on the third day after the judgment was rendered, who promised to deliver it to the justice of the peace. The constable testified that he went into the office of the justice of the peace, and offered the bond to him, and read the bond and the names of the bondsmen to him, and the justice of the peace said: “ ‘That is all right, but I am busy now. Hand it to me when I get through. ’ ’ ’ That he did not hand the bond to the justice of the peace, and that the bond was given to the justice of the peace several days after the five-day period had expired. The court held: ‘ ‘ The finding of the circuit judge on the disputed question of fact, on the hearing of the motion to dismiss the appeal from the justice of the peace court, will not be disturbed. ’ ’ It further held that the action of the constable constituted a legal filing, which could not afterwards be invalidated. In the case of Redus v. Gamble, 85 Miss. 169, 37 So. 1010, the court held that the right of appeal could not be lost by the failure of a justice of the peace to indorse his approval on the bond; that the bond in that case was actually filed and approved within the statutory limit for appeals, although it did not so appear on the bond. In the case at bar, we must assume a question of fact was raised and proof adduced showing that the appeal bond was filed within the statutory limit, and that the court below so found. In the case of Wilson v. Brown, 94 Miss. 608, 47 So. 545, Judge Fletcher, said: *677 “The chancellor’s notes show that one Ida Bass testified in the case; her testimony being taken orally before the chancellor, presumably by agreement. This testimony is not before ns, and we are therefore not able to judge of its effect. It may have been controlling with the chancellor, and we are compelled, in this state of the record, to uphold his finding of fact. ’ ’ In the case of Pratt v. Hargreaves, 75 Miss. 897, 23 So. 519, Chief Justice Whiteield, speaking for the court, said, in effect, that when the question of the residence of the testatrix was, by agreement, submitted on testimony not contained in the bill of exceptions, the finding of the court would be affirmed. As the record here does not contain the testimony on the motion to dismiss the appeal heard by the court, we must affirm the finding of the judge and presume that his judgment is correct. Affirmed.