Citizens' Bank v. Ratliff & Bradshaw

*869 Cook, J., delivered the opinion of the court. On July 26, 1924, upon a judgment previously rendered in the justice court, the appellees secured the issuance of a writ of garnishment against the appellant, Citizens ’ -Bank, returnable on August 14, 1924. On the return day the garnishee filed its answer admitting* an indebtedness to the judgment defendant of fifty dollars and sixty-seven cents, evidenced by an ordinary commercial deposit in said bank, and suggested in its answer that the judgment defendant was “a married man, and that such deposit was exempt to said defendant as the head of a family.” The appellees failed to appear in the justice court on 1¡he return day of this writ of garnishment, but the judgment defendant appeared and filed a claim for exemption, which was allowed,- and the garnishee discharged. *870 On September 2, 1924, upon proper petition, the appellees secured the issuance of a writ of certiorari directing the justice of the peace to send up to the circuit court the record in said cause. Upon the filing of this petition and the issuance of the writ of certiorari, a summons was issued for the judgment defendant returnable to the December term of the circuit court, but no summons was then issued for the garnishee. At the December term of the circuit court, the judgment defendant filed a motion to dismiss the certiorari proceedings, and, upon the hearing, the court overruled this motion and denied the exemption claimed, but entered a judgment against the judgment defendant for the sum admitted by the garnishee to be due him. On March 24, 1925, a summons was issued for the garnishee, citing it to answer the certiorari proceedings at the June term of the' circuit court, and at the June term the garnishee appeared and filed its motion to dismiss said proceedings as to it, setting up as the ground for dismissal that said cause was not filed as to the garnishee within the six-month period of time allowed by statute for the filing of certiorari proceedings. This motion was overruled, and thereupon the garnishee filed its plea or answer to the petition for certiorari, setting up that, after the appellees failed to appeal from the judgment of the justice of the peace, and before the filing of the petition for certiorari, the garnishee had paid to the judgment defendant the amount admitted by its answer to be due him, and that the appellees were estopped by reason of this failure to appeal or take other action before this money was paid out. A demurrer- to this plea was sustained, and final judgment entered against the garnishee for the said sum of fifty dollars and sixty-seven cents, and from this judgment the garnishee prosecuted this appeal. There is no contention that the judgment of the justice court allowing* the exemption was correct, but the principle ground for reversal urged by appellant is that it was not summoned to answer the certiorari proceedings *871 within six months after the date of the judgment sought to be reviewed, and, consequently, this proceeding was not begun .within the time allowed by section 90, Code of 1906 (Hemingway’s Code, section 72). Section 728, Code of 1906, (Hemingway’s Code, section 511), provides that in all cases in which it is not otherwise provided “the manner of commencing an action in the circuit court shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued; and an action shall, for all purposes, be considered to have been commenced and to be pending from the time of the filing of the declaration, if a summons shall be issued thereon for the defendant.” In the case of Stewart v. Petitt, 48 So. 5, 94 Miss. 769, it was held that, in order to bring a suit within this statute, its terms must be strictly complied with by the prompt issuance of a summons, and that, if the issuance of a summons is delayed, the commencement of the suit cannot be related back to the time of the filing of the declaration or claim, but must be referred to of the date of the issuance of the summons itself. The appellant contends that this section controls’ in certiorari proceedings, and that, since summons for one of the parties to be affected by this proceeding was not issued immediately after the filing of the petition, but was delayed until the expiration of the six-month period of limitation provided by statute, the proceedings cannot be construed to have been commenced within the statutory limitation. A proceeding by certiorari to remove a cause from from the justice court to the circuit court is not in any true sense the commencement of a suit. It is more in the nature of a writ of error to have reviewed the record of a cause begun in an inferior court, and the right to this writ is regulated by section 90, Code of 1906 (Hemingway’s Code, section 72), which provides that—“All cases decided by a justice of the peace, whether exercisin general or special jurisdiction, may, within six months thereafter, on good cause.shown by petition, supported by affidavit, be removed to the circuit court of the *872 county, by writ of certiorari, which shall operate, as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace . . . The clerk of the circuit court, on the issuance of a certiorari, shall issue a summons for the party to be affected thereby. ’ ’ Under this section certiorari proceedings are begun by the filing óf a sworn petition, supported by a proper bond, and the issuance of a writ directed to the inferior tribunal. In the latter part of the section, it is provided that, after the issuance of the writ, summons shall be issued for the party to be affected thereby, but the failure to issue this summons within the statutory limit of six months will not bar the proceedings where the proper petition and bond is filed, and the writ issued, within the time limit. A certiorari proceeding' may' be begun at any time before the expiration of the six-month period allowed by statute, and, in the case at bar, the petition and bond were filed and the writ issued well within the statutory limit, and there is no merit in the contention that appellees are -estopped to prosecute the writ by reason of the fact that appellant had paid out the money in its hands before the filing of the petition. The judgment of the court below will therefore be affirmed. Affirmed.