Carter v. Tindall

Philips, P. J. -This is an action of forcible entry and detainer, instituted in a justice’s court. On the-twenty-fourth day of May, 1886, the cause was tried in the justice’s court, resulting in a verdict and judgment for defendants. On the twenty-fifth day of the same month the plaintiff: perfected his appeal from this judgment to the circuit court. The transcript of this proceeding in the justice’s court was filed in the office of the-circuit clerk on the twenty-eighth day of May, 1886, within six days after the rendition of the judgment by the justice. It appears that this was during the term of the circuit court. In January, 1887, at a term of the said circuit court, the defendants filed a motion to affirm the judgment of the justice, for the reasons assigned in the motion, that the plaintiff, appellant, had failed to [318] give notice to the appellees of the appeal, although two terms of the circuit court had begun since the appeal was taken, .and because the cause was tried and judgment rendered by the justice during the May term, 1886, -of the circuit court, and while the court was in session, .and the justice had' failed to file the transcript within six days thereafter, as required by statute. This motion was sustained, and the plaintiff has appealed to this -court. I. As to the second ground alleged in the motion, it is sufficient to say, the fact shown by the record refutes the allegation. The judgment was rendered on the .twenty-fourth day of May, 1886, and the transcript was filed in the clerk’s office on the twenty-eighth day of May, 1886. Reliance for the first ground alleged in the motion for affirmance, we presume, is placed upon the provisions of article 9, chapter 44, of Revised Statutes, concerning appeals generally in justices’ courts. By section 3055 of this article it is provided, that if an appeal be not taken on the day on which judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term before the cause is to be determined, with a notice, in writing, stating the fact that an appeal has been taken, etc. Then, by section 3057, it is provided that if the appellant fail to give :such notice, at least ten days before the second term of th*e appellate court, after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed, at the option of the appellant. But it is claimed by the appellant that the case at bar is governed solely by the provisions of article 2, chapter 33, concerning forcible entry and detainer, under which no such notice is required. Section 2468 of this statute provides that: “Any party aggrieved by the. judgment of the justice of the peace, in any case of forcible entry and detainer, or unlawful detainer, except a judgment of non-suit, may appeal therefrom to the circuit court.” Section , 2469 provides that no appeal shall -be allowed, unless the same be applied for, and an affi [319] davit and recognizance filed with the justice, within ten days after the rendition of the judgment, and before the return day of the appeal, although such return day be, within ten days after the rendition of the judgment. Section 2470 provides that, when the judgment is rendered during the vacation of the circuit court, the appeal shall be returnable to the first day of the next term thereof; but if the judgment be rendered during the term of such court, the appeal shall be returnable within six days after the rendition of the judgment. From these provisions it is manifest that the statute respecting proceedings in forcible entry and detainer contemplates a more summary trial and disposition of appeals than in an ordinary action begun in a justice’s court. In case the judgment of the justice be rendered during the term of the appellate court the return of the justice’s transcript shall be made to the appellate court “ within six days after the rendition of the judgment.” It is, therefore, quite evident that the provision of section 3055, requiring and permitting the appellant to give the appellee ten days’ notice of the appeal before the first day of the return term, is impossible of performance in the case of an appeal from a judgment in a forcible entry proceeding taken during the term of the appellate court. The whole chapter concerning the proceeding in the action of forcible entry and detainer shows, as already stated, that the design was to hasten the trial; and the chapter is a complete scheme and system, in and of itself, for the government of such proceeding. In the first place only five, days’ notice, by summons, before the day of trial is required (sec. 2425); whereas in respect of suits generally in justices’ courts ten days’ notice by summons is required. Sec. 2861. No notice is anywhere prescribed in article 2, chapter 33, providing for appeals in the action of forcible entry and detainer, from the appellant to the appellee, that an appeal has been taken. If the appeal be taken in vacation of the appellate court, the cause is returnable, to the first term, -even though such term begin within ten days after [320] appeal taken. If taken in term time of the appellate-court it is returnable within six days : and in either case the cause stands for trial at such return term. The provisions of said section 3055, as already stated, cannot apply, as the notice there prescribed must be ten days before the return term. And as no such notice is prescribed by the chapter concerning appeals in the action of forcible entry, and no time is prescribed for such notice, shortening the period of ten days, the conclusion seems irresistible that the statute does not contemplate any such notice in this proceeding. It follows that the judgment of the circuit court is-reversed and the cause remanded. All concur.