Opinion
No. 34823.
December 20, 1941. Suggestion of Error Overruled January 12, 1942.
1. COURTS.
Where a circuit court is exercising an appellate jurisdiction, such jurisdiction depends upon whether inferior court from which the appeal was taken had jurisdiction in premises.
2. FORCIBLE ENTRY AND DETAINER.
Where a court of unlawful entry and detainer was organized, composed of three justices of the peace, pursuant to proceeding instituted in that behalf, it acquired jurisdiction of the subject matter without regard to whether the two justices other than the one issuing the process had been summoned in manner required by law, and such court was vested with authority to enter a judgment in the cause at such time and place as was permitted by law.
APPEAL from the circuit court of Newton county, HON. PERCY M. LEE, Judge.
Colbert Dudley, of Forest, and B.F. Coursey and H.R. Stone, Sr., both of Decatur, for appellants, on suggestion of error.
This action was begun on September 12, 1939, by the filing with W.A. Gilmore, Justice of the Peace of District 4, Newton County, Mississippi, of a statutory form complaint in unlawful entry and detainer. A warrant in statutory form was issued, and the returns thereon are as follows: "I have this date executed the within writ by delivering to A.B. Amis, Jr., Mrs. Pauline Amis, H.E. Dearing and Albert Reynolds in person a true copy of same. This the 13th day of Sept., 1939. J.M. Wells, Deputy Sheriff."
The warrant was returnable on September 19, 1939. At some time, but when and by whom the record does not show, an entry was made on the docket of W.A. Gilmore, justice of the peace, as follows: "Continued to October 3rd, 1939."
Thereafter, and without any further docket entries, and when, as is shown by recitals therein, to the effect: "that said defendants have wholly made default in said cause," there was a final judgment rendered in favor of the appellee on October 17, 1939.
On October 21, 1939, appellants filed their statutory form appeal bond and thereby perfected an appeal of said cause to the Circuit Court of Newton County, Mississippi. Thereafter, and at the first or return term of the circuit court, the appellee filed its motion "to permit the officer serving the writ to amend the returns." The circuit court overruled said motion and an order was duly entered accordingly.
Thereupon, and on the same day on which appellee's motion was so overruled, appellants then filed their motion to "quash the process and summons." On the hearing of this motion the court entered an order that "the original process in this cause is hereby quashed." The circuit court by this order quashing said process further held that the appearance of the appellants on said motion was an entry of appearance as of the date of entry of said order, and therefore continued said cause for the term.
At the next term of the circuit court the appellants filed their motion asking "for the entry of an order dismissing this cause for want of jurisdiction."
Then at the next term of the circuit court the motion to dismiss for want of jurisdiction was heard and an order entered overruling said motion. Thereupon appellants refused to plead or defend further, and a final judgment was entered in favor of appellee. From this judgment appellants prosecute their appeal to this court.
Among other questions as presented by this appeal was the question of jurisdiction of the subject matter. While a defendant may waive jurisdiction of the person, he cannot by consent or waiver confer jurisdiction of the subject matter.
Carner v. Moore, 130 Miss. 658, 94 So. 890.
The circuit court on appeal of an action of unlawful entry and detainer tries the case de novo, yet it has only appellate jurisdiction in such cases.
Lester v. Harris, 41 Miss. 668.
The action of unlawful entry and detainer is a purely statutory action, in derogation of the common law, and such statutes shall be strictly construed.
Sistrunk v. Majure, 186 Miss. 814, 192 So. 5.
A special court or a court of limited and special jurisdiction and the mode of procedure and trial is defined by statute, and there was and is no presumption in favor of its jurisdiction.
See African Baptist Church v. Warren, 50 Miss. 223; Root v. McFerrin, 37 Miss. 17; Bolivar County v. Coleman, 15 So. 107.
We contend that by an appeal from a justice court, or a special court of unlawful entry and detainer, and then appearing in the circuit court and there making a motion to quash process, followed by a motion to dismiss for want of jurisdiction, the appellant waived jurisdiction of the person but that he did not waive the question of jurisdiction of the subject matter and could in proper time and order raise such question.
Batson Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880.
Leon F. Hendrick, of Jackson, and S.T. Roebuck, of Newton, for appellee.
In appellants' motion to dismiss for want of jurisdiction, filed in the lower court, several grounds were alleged, which are repeated and argued for a reversal of this case. But boiled down, it will be seen that appellants base their contentions on only two grounds, to-wit:
1. That no proper process was served on the justice of the peace comprising the court of unlawful entry and detainer, and
2. The return day in the justice of the peace court was September 19, 1939, and judgment was not entered until October 17, 1939.
Appellants have argued their contentions at length and cited many cases that are not in point. They even contend that the circuit court in unlawful entry and detainer actions has no original jurisdiction but only appellate jurisdiction and cannot try such cases de novo, and cite the case of Lester v. Harris, 41 Miss. 668. That case was decided in April, 1868. It was begun in the county court of Panola County and appealed to the circuit court. In those days, on such appeals the circuit court had only appellate jurisdiction. Not so in the years 1939, 1940 and 1941 — the years appellants have kept this case in the courts. In order to sustain our position that there is no merit in any of the points raised by appellants, we could make an elaborate argument and cite many authorities in support thereof. This is wholly unnecessary, since the matter is directly controlled by Sections 63, 2999 and 3000 of the Code of 1930.
Illinois Central Railroad Co. v. Ann Swanson, 92 Miss. 485, 46 So. 83; Brown v. Ashford, 56 Miss. 677; Leavenworth v. Crittenden, 62 Miss. 573; Bank of Hattiesburg v. Grigsby, 170 Miss. 655, 155 So. 684; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Turner v. Williams, 162 Miss. 258, 139 So. 606.
It is complained on suggestion of error that in our affirmance of this case on a former day of this term we overruled without an opinion a line of previous decisions of the court which hold that where the circuit court is exercising an appellate jurisdiction the same depends upon whether the inferior court from which the appeal was taken had jurisdiction in the premises. In this contention the appellants are in error. We fully recognized the force and effect of those decisions in deciding the appeal, but we were of the opinion that the contention of the appellants to the effect that the court of unlawful entry and detainer, from which the appeal in the case at bar was taken to the circuit court, was without jurisdiction of the subject matter, was not well taken. The justice of the peace before whom the proceeding was instituted issued process in the statutory form for the appellants as defendants in such proceeding and directed the officer to summon two other justices of the peace to appear and serve with him in forming the court of unlawful entry and detainer. The return of the officer on such process did not recite that the two persons other than the defendants on whom the process had been served were justices of the peace, but they appeared and served in such capacity as shown by the judgment duly signed by them in their official capacity along with the justice who had issued the writ. If it be true, as contended by the appellants, that the process on the two other justices and the return thereon was not in conformity with the requirements of the statute relating to process of that kind and character, then the most that can be said in regard thereto is that such justices were not required to respond to the same, that it was not binding upon them. Such defect became immaterial, however, when they appeared in response thereto and served without objection. When the court of unlawful entry and detainer was organized, composed of the three justices of the peace, pursuant to the proceeding instituted in that behalf, it acquired jurisdiction of the subject matter without regard to whether or not the two justices other than the one issuing the process had been summoned in the manner required by law and such court was vested with authority to render a judgment in the cause at such time and place as was permitted by law. This having been done, both the special court and the circuit court had jurisdiction of the case.
No question is raised by the appellants on this appeal as to the jurisdiction of such courts over their persons as defendants.
Suggestion of error overruled.