Opinion
No. 28075.
October 7, 1929.
CRIMINAL LAW. Appeal from circuit court conviction should not be dismissed on ground such court was without jurisdiction.
Appeal from conviction in circuit court should not be dismissed on ground that circuit court was without jurisdiction to try and dispose of case because record transmitted by justice of peace to circuit court, on which case was there tried, was so imperfect as to confer no jurisdiction.
APPEAL from circuit court of Amite county. HON. R.L. CORBAN, Judge.
J.S. McGuire, of McComb, for appellant.
Where on an appeal from a conviction from a justice of the peace to the circuit court, the justice fails to certify the record as required by law, the circuit court should dismiss the case for want of jurisdiction and the same result should follow on appeal to the supreme court. James W. Cassedy, Jr., Assistant Attorney-General for the state.
On an appeal from a conviction in a justice of the peace court, the fundamentals of jurisdiction of the circuit court are the affidavit charging the offense, the judgment of the court and appeal bond.
Borders v. State, 138 Miss. 788, 104 So. 145.
It is fundamental that when a circuit court has no jurisdiction of a case that the supreme court on appeal could have no jurisdiction.
Cook v. State, 144 Miss. 519, 110 So. 443; McLain v. State, 145 Miss. 210, 110 So. 441; Borders v. State, 138 Miss. 788, 104 So. 145; Young v. State, 140 Miss. 165, 105 So. 461; Salers v. State, 142 Miss. 88, 107 So. 375; Galloway v. State, 144 Miss. 696, 110 So. 665; Rogers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481.
The party who appeals a cause from a justice of the peace court to the circuit court is charged with the duty of getting a true and correct record before the court.
Ex parte Golding, 114 So. 385; Gardner v. Railroad, 78 Miss. 640; Ruff v. Montgomery, 83 Miss. 184; Andrews v. Wallace, 72 Miss. 291; Crapoo v. Grand Gulf, 9 S. M. 205; Gardner v. Railroad, 78 Miss. 643, 29 So. 470; City of Pass Christian v. Lizana, 106 Miss. 470; Kelly v. Ladies' Aid Society, 140 Miss. 580, 106 So. 627; McPhail v. Blann, 47 So. 666; Murphy v. Hutchinson, 47 So. 666; Humphreys v. McFarland, 48 So. 182.
ON THE MOTION TO DISMISS.
This is an appeal from a conviction in the circuit court in a case appealed thereto from the court of a justice of the peace. We are requested by the appellee, by proper motion to dismiss the appeal; the ground of the request being that the record transmitted by the justice of the peace to the circuit court, and on which the case was there tried, is so imperfect as to confer no jurisdiction on the circuit court.
There are two lines of decisions as to what disposition an appellate court should make of a case appealed thereto from an inferior court which was without jurisdiction to try and dispose thereof. According to one of these lines of decisions, the appellate court is without jurisdiction to entertain the appeal, and should dismiss it. According to the other and more numerous line of decisions, the appellate court should reverse the judgment appealed from, and either dismiss the case or remand it for further proceedings in accordance with its opinion. 3 C.J. 366; 2 R.C.L. 33.
Both of these courses have been pursued by this court, one of which, of course, is wrong, for the same rule should be applied in all cases of that character. In a long line of decisions, beginning with Crapoo v. Town of Grand Gulf, 9 Smedes M. 205, this court reversed judgments of lower courts which they were without jurisdiction to render, and either dismissed the cases, or remanded them to the lower courts, as the necessities of the various situations required. In a large number of these cases including the one just cited, the defects in the records transferred from the justice of the peace to the circuit court were similar to the defects alleged to exist here. Among these cases are Sagory v. Bayless, 13 Smedes M. 153; Wiggle v. Owen, 45 Miss. 691; Andrews v. Wallace, 72 Miss. 291, 16 So. 204; Allen v. State, 98 Miss. 192, 53 So. 498; Ex parte Stanfield, 98 Miss. 214, 53 So. 538; Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481; Anderson v. McInnis, 99 Miss. 823, 56 So. 170; Cawthorn v. State, 100 Miss. 834, 57 So. 224; Beard v. McLain, 117 Miss. 316, 78 So. 184; Xydias v. Pellman, 121 Miss. 400, 83 So. 620; Yazoo M.V.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; Callicott v. Horn, 137 Miss. 693, 102 So. 850; J.J. Newman Lumber Co. v. Pace, 137 Miss. 504, 102 So. 570; Young v. State, 140 Miss. 165, 105 So. 461; Brasham v. State, 140 Miss. 712, 106 So. 280; Salers v. State, 142 Miss. 88, 107 So. 375; Galloway v. State, 144 Miss. 696, 110 So. 665; McLain v. State, 145 Miss. 210, 110 So. 441; Jeffries v. State, 146 Miss. 467, 111 So. 576; Clark v. State, 150 Miss. 759, 116 So. 878.
The cases decided by this court wherein the appeals thereto were dismissed for want of jurisdiction in the lower court to render the judgment appealed from, that have been called to our attention, are Gardner v. R.R. Co., 78 Miss. 640, 29 So. 469; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Ruff v. Montgomery, 83 Miss. 184, 35 So. 465; Rayborn v. Cothern (Miss.), 43 So. 70; McPhail v. Blann (Miss.), 47 So. 666; Murphy v. Hutchinson (Miss.), 47 So. 666; Johnson v. Marshall (Miss.), 48 So. 182; Humphreys v. McFarland (Miss.), 48 So. 182.
Returning now to the case at bar: Should we dismiss this appeal the judgment of the court below will remain in force, subject to whatever relief the appellant could obtain therefrom by means of a collateral attack thereon, and this court would thereby fail to discharge its duty to review final judgments rendered in the courts below, and to affirm or reverse them; one ground for the reversal thereof being want of jurisdiction in the court in which the case was tried to render the judgment appealed from.
The cases hereinbefore cited, and any others of like character that may have been here overlooked, holding that appeals from judgments rendered by courts below without jurisdiction so to do should be dismissed, are hereby overruled, and the motion here under consideration will also be overruled.
Motion overruled.
ON THE MERITS.
For the reason stated in the opinion of the court in banc ( 123 So. 882) in this case on the motion to dismiss the appeal, the judgment is reversed and the case remanded.
Reversed and remanded.