Opinion
No. 34960.
September 28, 1942.
1. JUSTICES OF THE PEACE.
Appeals from a justice of the peace are heard "de novo" which means that such appeals are tried anew.
2. COSTS.
A successful plaintiff in justice court may be required to furnish security for costs in circuit court, where cause was brought on defendant's appeal, since appeal is heard anew and the rights of the parties are the same as if suit was originally brought in circuit court (Code 1930, secs. 67, 656, 679, 682).
APPEAL from the circuit court of Oktibbeha county, HON. JOHN C. STENNIS, Judge.
B.F. Bell, of Starkville, for appellant.
Section 64 of the Code of 1930 is the only law governing and regulating the matter of security bonds in cases of this character having to do with justice of the peace jurisdiction and appeals therefrom. This statute plainly states that "either party may appeal to the circuit court from the judgment of any justice of the peace if appeal be demanded and bond given within ten days after rendition of the judgment. The party taking the appeal shall give bond with a sufficient surety to be approved by said justice, payable to the opposite party in the penalty of double the amount of the judgment, or the value of the property," etc. We respectfully submit that the statute does not hint in the most remote way that both parties may be required to provide bonds in any circumstances. Our conception of the law is that the provision of the statute is made for the party who feels that he is aggrieved by the judgment and, therefore, places the obligation on him to supply the cost bond if he desires to seek relief in a superior court. The statute does not intimate that both parties shall give this security where only one of them appeals, or even where there is a cross appeal, any more than it would require both parties to supply such bonds in the initiation of the suit. The plaintiff is the party who conceives that he has legal rights enforcible in the courts, growing out of the acts or failure to act on the part of the defendant. The statute says that he, under definitely stated circumstances, must secure the costs in order to test out his supposed rights. This being done, and judgment obtained sustaining his contention wholly, or in part, the defendant becomes the aggrieved party. If the defendant conceives that his grievances arises from the error of the trial court, the burden shifts to him, if he desires to test out his grievance in a higher court, and the statute provides that he shall make the necessary appeal bond.
It is the settled rule that requiring security for costs on appeal is purely statutory, and that the court's authority in this respect is strictly limited to the provisions of the statute. No requirement in this respect can be made unless provided for by statutory enactment.
20 C.J.S. 584, Sec. 339.
In Mississippi, an appellee cannot be required to give bond on appeal, even though he takes a cross-appeal, where the record goes up on the direct appeal.
Wilson v. Jourdon, 79 Miss. 133, 29 So. 823; Crawley v. Ivy, 149 Miss. 764, 116 So. 90.
Lavell W. Brown and Daniel Bates, all of Starkville, for appellee.
The matter of costs is largely statutory, but where a particular case does not come within the statute it is discretionary with the court, and the court has the inherent power to protect litigants in the matter of costs.
Clarke v. Parker, 63 Miss. 549; Bernheim et al. v. Winston (Miss.), 28 So. 28; Code of 1930, Secs. 679, 682.
All appeal cases from a justice of the peace court are tried anew in the circuit court.
Callahan v. Newell, 61 Miss. 437; Code of 1930, Sec. 67.
The trial court did not err in dismissing appellant's suit.
Code of 1930, Sec. 656.
When security or a deposit of money is made for costs it must remain until termination of the case, and the court may require additional security or deposit.
State ex rel. Dart v. Baker, 132 Fla. 820, 182 So. 223; Code of 1930, Sec. 657.
This is a suit on open account in the sum of $109 brought by Archer before a justice of the peace. Judgment was recovered for $34. Motion was made by the defendant for a rule against plaintiff for costs who, in compliance with an order thereon, deposited the sum of $5 in court. Pending appeal to the circuit court by the defendant, this deposit was withdrawn by plaintiff.
Motion was again made by High in the circuit court for security for costs and an order was entered allowing Archer sixty days in which to comply therewith. At the following term, the rule not having been complied with, High made a motion to dismiss the appeal, which motion was sustained and the case dismissed. Archer appeals from such order of dismissal upon the ground that the circuit court was without power to require security for costs. Appellant contends that there is no statutory authority for requiring a successful appellee to furnish security for costs. The argument is (1) that the cause is before the circuit court not at the instance of the appellee, who was the successful plaintiff in the justice court, and (2) that, in view of the existing appeal bond filed by appellant, defendant below, there is no necessity nor propriety for an additional bond. High contends that if Section 656, Code of 1930, does not apply, authority for the rule may be found in Section 682 thereof which provides that: "If a case shall occur in any court not embraced expressly or by fair implication in some provision of law, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper . . ."
All appeals from a justice of the peace are heard de novo, which means that such appeals "are to be tried anew, as if never tried before." Callahan v. Newell, 61 Miss. 437; Amory Independent Telephone Co. v. Cox, 103 Miss. 541, 60 So. 641; Code 1930, Sec. 67. Consistent with this view, it is not necessary for us to refer defendant's right to require such security to Section 682, but the rights of both parties are the same as if the suit had been originally brought in the circuit court. Since additional costs have accrued to abide the event of the appeal, there is more reason for the defendant now to seek the protection of the statute. Plaintiff, who must now prosecute his case anew, enjoys the privilege of seeking a larger judgment and is confronted with the possibility of liability for further costs in the event he loses his case or recovers judgment for less than the amount appealed from. Section 679, Code 1930. Other applicable statutes deal with additional contingent liability of plaintiff upon appeal.
Under Section 656, Code 1930, the circuit clerk may, in enumerated cases, require security for costs from a plaintiff. It could not reasonably be argued that the clerk, whose first opportunity to protect himself by the statute arises when the case is docketed by him on appeal, is without power to require such security. Nor should any distinction be made between the clerk and "any other party interested" since the statute makes none. High's bond was a condition of his appeal. Its function was not to supplant the contingent liability of Archer for costs, which remains a necessary incident of a trial de novo in which he retains the privileges and liabilities of a plaintiff. McMurray v. Liddell, 227 App. Div. 116, 237 N.Y.S. 131; Thompson v. Miller, 2 Stew., Ala., 470; Boatz v. Berg, 51 Mich. 8, 16 N.W. 184; Farmers' Nursery Co. v. Harshberger, 25 Pa. Co. Ct. R. 456; Simanek v. Nemetz, 120 Wis. 42, 97 N.W. 508.
Affirmed.