Roberts v. Weiler & Haas

Chalmers, J., delivered the opinion of the court. The proceeding was by scire facias to revive a judgment; rendered in the Justice’s Court. Ordinarily, the only valid answer in such cases is payment since the rendition, or that: [252] the judgment was void. The bankrupt discharge, attempted to be set up as an answer to the scire facias, is not available, because it had been obtained before rendition of the judgment, .and should have been pleaded upon the original trial. Not .having been then pleaded, it is waived. Jones v. Coker, 53 Miss. 195. It is said that the judgment is void because the Justice’s ‘Court had no jurisdiction. The suit was originally commenced by attachment in the Circuit Court, before the adoption of our present Constitution. It involved less than $150, and, therefore, after the adoption of that instrument, the Circuit Court •could no longer entertain jurisdiction. By the act of July 19, 1870 (Sess. Acts, 104), all such cases “ depending in the Cir•cuit and in the County Courts of this state, upon the adoption of the present Constitution,” were directed to be transferred “ to any justice of the peace of the center beat of the •county.” Under this law this case was, by the Circuit Court ■of Monroe County, transferred to the court of Justice Walker, -of the center beat of said county. The act of the Legislature recited is not obnoxious to the criticism made upon it by •counsel, to the effect that it was void because depending upon ;a future contingency, to wit, a prospective adoption of the •Constitution. The Constitution had already been adopted, ■ and the words “upon the adoption of the present Constitution” refer to cases which were depending in the Circuit and •County Courts at the date of its adoption. Justice Walker had jurisdiction, therefore, to render the judgment. It is ■further insisted that the judgment was void because the replevin bond had been given in double the value of the property .attached, and judgment was rendered upon it for the amount • of the debt sued for, without an ascertainment of the value • of the property, as directed by section 1448 of the Code. The bond shows that the property attached had been valued, by the ■ officer levying the writ, at an amount exceeding the debt sued for. The proceeding being oral, before a justice, we must .presume that he discharged his duty, and judicially ascer. [253] tained that the value of the property exceeded the debt, and rendered his judgment accordingly. In the Circuit Court a. writ of inquiry would have been necessary. It would have been more regular in the Justice’s Court to have made a separate entry fixing the value of the property, but we cannot, on a scire facias to revive, hold the judgment void on account of the omission of such entry. Judgment affirmed.