Cummings v. Fisher

Litz, Peesident: This is a proceeding in prohibition to inhibit the hearing upon an alleged appeal from a justice. The relator, A. L. Cummings, recovered judgment against *576 Louisa Seabolt, before W. S. Hamrick, a justice of the peace of Webster County, January 15, 1935, in an action of unlawful entry and detainer, for the possession of a tract of land and $25.00 damages for the unlawful withholding thereof. On that date, the defendant applied for an appeal, and tendered to the justice an appeal bond executed by herself, without security, in the penalty' (fixed by him) of $100.00. The justice, refusing to accept the bond because it had not been signed by a surety, advised her that he would accept, in lieu of an appeal bond, a certified check for $100.00, payable to E. L. Cutlip, as general receiver of the circuit court. On the same day, she delivered to the justice the required check which he promptly deposited with the general receiver of the court, “to secure costs, etc.,” in the ease. A day or two thereafter, counsel for Cummings advised the justice and the attorney representing the defendant that the cheek, in his opinion, would not serve the purpose of an appeal bond. The justice declining to note an appeal on his docket or transmit the papers in the case to the clerk of the circuit court, in accordance with section 5, article 15, chapter 50, Code 1931, the defendant presented her petition to the circuit court, May 23, 1935, for an order requiring the justice to certify the record. Upon a hearing of the petition, September 20, 1935, the defendant testified that after she had deposited the check with the justice he advised her that nothing more was required to perfect the appeal. The justice admits that he informed her the check would serve the purpose of an appeal bond, but claims that he apprised her of the statutory requirement (under chapter 35, Acts 1931) of depositing $5.00 to cover the fees of the clerk of the circuit court. An order was thereupon entered by the circuit court, treating the appeal as having been perfected and docketing the same for trial. Thereafter, the plaintiff applied to this court for a rule against the Honorable Jake Fisher, as judge of the circuit court of Webster County, to show cause why he should not be inhibited from proceeding further in the action. Relator contends that the appeal was never perfected (1) because the check did not serve the purpose of an appeal bond, required by section 2, article 15, chapter 50, Code 1931; *577 and (2) for the reason that the defendant failed to deposit with the justice $5.00 to cover the fees of the clerk of the circuit court. Section 12, article 15, chapter 50, Code 1931, permits a party appealing from the judgment of a justice to execute a new appeal bond when “the bond filed is insufficient, or the security doubtful”; and provides that no appeal from a justice shall be dismissed for failure of the justice to comply with any statutory requirement if the appellant has executed the required bond and done all necessary on his part to perfect the appeal, “and in no case shall any appeal from” a justice “be dismissed when it shall appear to the appellate court that injustice might he done to the appellant * * *,” but in every such case “such appeal shall be docketed, heard and disposed of by such appellate court in accordance with the ordinary rules of law governing the trial of such cases, and under such other orders as the court may see fit to impose.” The party appealing from the judgment of the justice may not deposit money or its equivalent in lieu of an appeal bond. 35 C. J. 757. In view of the failure of the defendant in the action before the justice to tender a sufficient bond and deposit with the justice the sum of $5.00 to cover the fees of the clerk of the circuit court and the refusal of the justice to note the appeal on his docket or transmit the papers to the clerk of the circuit court, we are of opinion that, notwithstanding the remedial statute noted, the circuit court acted without jurisdiction in holding that an appeal had been perfected. If the defendant had been misled by the justice in believing that the appeal had been perfected, she should have filed her petition for appeal (under section 6, article 15, chapter 50, Code 1931) with the circuit court, or judge thereof in vacation, within ninety days after the date of the judgment. The peremptory writ of prohibition will be awarded. Writ awarded.