Douglass Bros. v. Neguelona

* Beaed, J. Douglass Bros, recovered a judgment against Neguelona before a Justice of the Peace, on December 31, 1889, from which, more than two days thereafter, to wit, on January 3, 1890, the defendants prayed, and, upon the execution of a bond, took an appeal to the succeeding term of the Circuit Court. In that Court Douglass Bros, moved for a dismissal of this appeal and for an affirmance of the Justice’s judgment, which motion was overruled, and instead a judgment was entered dismissing the appeal, and against Neguelona for all costs incident thereto, and awarding a pro-cedendo to the Justice to execute his judgment. This cause is brought to this Court, and the error assigned is the refusal of the Circuit Court to affirm the judgment of the Justice upon the dismissal. This contention is rested upon the words of § 3861 (M. & V.) Code, and the case of Gilbert v. Driver, 3 Head, 462. The words of that section are: “So also if the papers are properly returned, and the appellant fails to appear or defend within the first three days of the term to which the papers are returned; or, if the appeal is dismissed for any cause, the appellee is entitled to an affirmance of the judgment below, with costs.” In the [771] ease of Gilbert v. Driver, supra, an appeal was taken from a Justice’s judgment, after the hipjse of the statutory period, to the Circuit Court, where it seems, upon a trial de novo, a different judgment was pronounced, which, on appeal to this Court, was reversed, and an order was entered here dismissing .the appeal to the Circuit Court, and á judgment of affirmance of the Justice’s judgment was awarded. This judgment was rested, in the opinion of the Court, upon the authority of the section in question. In reply to this contention, it is insisted by the defendant in error that § 3861 does not and was not intended to cover a case like this, but that it is provided for by § 3940 (M. & V.) of the Code; and as authority for this position the case of Jackson v. Baxter, 5 Lea, 344, is relied on. ' In the case just referred to an order of dismissal was entered by the Circuit Court because the papers from the Justice’s Court failed to show a prayer for or grant of appeal, or a bond or pauper oath as a substitute for it, but a judgment was awarded affirming that of the Justice. On appeal to this Court, it was held that the Circuit Court was in error in its judgment of affirmance, and that the only judgment which it could render was one of dismissal and for costs, and that the case in question fell within the terms of § 3940, and not those of § 3861. The opinion in Jackson v. Baxter does not mention the case of Gilbert v. Driver, and from the fact of its omission it is [772] assumed that it was not called to the attention of the Court. After quoting at length the words of § 3861 (§3145, T. & S.) and §3940 (§3215, T. & S.), the opinion in Jackson v. Baxter concludes with these- words: “This,” referring to §3940 (§3215), “provides for costs, but not for affirmance; the first section (§ 3861, M. & V.; §3145, T. & S.) is not contrary to it, for it provides for the dismissal of an appeal, but not for a case where none was had.” Upon an ex'aminatiqn of these statutes, we are satisfied that the Court, in Jackson v. Baxter, has properly discriminated them. Section 3940 is, in so many words, Section 2 of - Chapter 5 of the Act of 1832. Prior to that Act it was held that in a case coming from an inferior to a superior tribunal and there dismissed for want of jurisdiction, a judgment for costs could not be entered', but the case was simply stricken from the docket. Taul v. Collingsworth, 2 Yer., 579. To remedy this defect, and relieve from loss officers of the Court and Avituesses called into a tribunal lacking jurisdiction, of the cause, the Act in question was passed. Its terms specifically point out the remedy Avhen a suit “is dismissed for AArant of jurisdiction,” a'nd in such a case limits the recovery to costs. Nor do Ave think there AAms any intention on the part of the Legislature to extend the remedy in such cases b3r §3861. Our construction of this section confines its operation to cases AAdiere an appeal has been proper!y taken, and jurisdiction of the Cir [773] cuit Court has attached, but for some reason subsequent to the appeal — such as a failure to return the papers in the cause, or of the appellant to appear and prosecute his appeal within the time the statute directs, or the appellant’s failure to cure, on order, a defective bond, or to give other and better security, or other like reason — the appeal is dismissed. In such cases an affirmance of the judgment below is proper. On the contrary, § 3940 operates in cases where the jurisdiction of the Appellate Court has not attached — such as the one at bar. This construction saves all repug-nancy between the two sections, and, as we think, effectuates the intention of the Legislature. It will be observed that in the matter of jurisdiction we put a case where a bond has been executed after the lapse of the statutory period for appeal upon the same footing with a case brought up without an appeal bond or a prayer for appeal, and regard both as falling within the terms of § 3940. It follows that the case of Gilbert v. Driver is overruled. Let the judgment of the Circuit Judge be affirmed. A judgment for the costs of this appeal will be entered against the appellants and their sureties on the appeal bond. Footnotes [*] W. D.. Beard, Esq., of the Memphis Bar, was appointed by the Governor to serve during Judge Folkes’ disability, and was afterward re-appointed to fill vacancy caused by the death of Judge Folkes.— Reporter.