Gardner v. New Orleans & Northeastern Railroad

ON JURISDICTION. Whitfield, C. J., delivered the opinion of the court dismissing for want of jurisdiction. There is no bond for appeal to the circuit court, and no judgment of the justice of the peace, nothing to show that the case originated lief ore a justice of the peace. If not, the circuit court had no jurisdiction, and this court would have none. The mere statement of the stenographer that the case ‘£ had been tried by a justice of the peace and had been appealed to the circuit court” will not do. We can only dismiss the appeal. If the case was appealed to the circuit court, the bond and j udgment should appear in the record. We will re-instate the case if appellant will, by certiorari, complete his record, [644] but on the condition that the appellant shall pay all the costs of the appeal in this court. We find it necessary to impose these terms, to make appellants, in cases originating before justices of the peace, see to it that §§ 83 and 84 of the Code have been complied with. We have had two such records before us within' two weeks. This court has twice settled the point. See Andrews v. Wallace, 72 Miss., 291; Crapoo v. Grand Gulf, 9 Smed. & M., 205. Not having jurisdiction, on the record as it now stands, since the circuit court is not shown to have had any, we enter the only judgment we can, which is to Appeal dismissed, but with privilege of reinstating on terms indicated. ON THE MERITS. After the delivery of the foregoing opinion, the appellant procured the reinstatement of the case on the terms mentioned therein, and the case having been resubmitted on the same briefs, the following opinion was rendered: W hitfield, C. J., delivered the opinion of the court on the merits. The peremptory instruction for appellee should not have been given. The evidence clearly shows that the heavy rains, of the sixteenth and seventeenth of April went right through the roof into the stoves. The agent admits he saw the water in the stoves, that it might ha-ve gotten into them through the roof, and that he did not inspect the roof. The goods were hardware, and it is plain the only damage they sustained was from the rain. ■ They were in good condition then in all respects save rust from these rains, and they were, therefore, of course in good condition when shipped from St. Louis. The case, in this aspect, is much like 30 Minn., 438. The most casual inspection of the roof of the car must have disclosed its unsuitableness. The ease and abundance with which the rains went through the roof make it idle to [645] deny this. Res ipsa loquitur. And, on this evidence, it was manifestly improper to grant the peremptory charge. . The bill of lading was improperly excluded. 4 Am. & Eng. Ene. L. (new ed.), 522(7). Reversed and remanded.