Opinion
No. 33500.
November 14, 1938. ON MOTION.
1. EVIDENCE. Justices of the peace.
A copy of judgment of a justice of the peace may be competent on trial of case on appeal in circuit court where it is relevant to issue then on trial, and, where relevant, may be offered without introducing original judgment.
2. APPEAL AND ERROR.
The transcript of record in justice court, in which case tried de novo on appeal to circuit court originated, was properly a part of record in Supreme Court, although not offered in evidence.
ON MERITS. (Division B. Jan. 16, 1939.) [185 So. 581. No. 33500.]1. PLEADING.
In absence of a plea setting up an affirmative defense, a defendant need not prove anything.
2. COURTS.
A litigant cannot waive circuit court's jurisdiction of the subject matter, but by his course of action he may assert the jurisdiction, and, if record shows that court did have jurisdiction, it will be sustained.
3. APPEAL AND ERROR.
A plaintiff who asserted that circuit court had jurisdiction to render judgment on issue involved on appeal from justice court's judgment could not urge as ground for reversal of circuit court's judgment failure to dismiss appeal on ground that defendant had failed to show that circuit court had jurisdiction.
4. CRIMINAL LAW.
On appeals to circuit court in criminal cases, the state, which has the burden of proof, must prove affirmatively all necessary jurisdictional facts, and to that end transcript of proceedings on appeal is introduced in evidence.
5. JUSTICES OF THE PEACE.
Though a plaintiff on appeal to circuit court in a civil case may find it necessary to introduce record on appeal, to establish basis for recovery, that is not required of a defendant not carrying the burden of proof on any issue.
6. APPEAL AND ERROR.
Transcript of proceedings and judgment of justice of the peace is properly a part of the record in the Supreme Court on appeal from circuit court's judgment, though not offered in evidence in circuit court on appeal from justice court's judgment.
APPEAL from the circuit court of Madison county; HON. J.P. ALEXANDER, Judge.
A.M. Warwick, of Carthage, for appellant.
The amount in controversy in this case was $175.00. The Circuit Court only has original jurisdiction of matters when the principal of the amount in controversy exceeds $200.00. Section 490, Miss. Code 1930. In this case the Circuit Court acted as an appellate court and could acquire jurisdiction only by appeal; the record had and made at the trial before the circuit court must show the foundation of a judgment. Without the proper evidence of a judgment in the court appealed from, the transcript from said court, and the appeal bond therefrom, the Circuit Court was without authority to try the case.
Andrews v. Wallace, 16 So. 204; Crapoo v. Town of Grand Gulf, 9 S. M. 205.
Sections 64, 65 and 66 of the Miss. Code of 1930 provide what is necessary to be done in causes originating before a justice of the peace and appealed to the circuit court. Under the facts disclosed in the record of the trial court, the circuit court had no jurisdiction of the case. In the absence of effort on part of the appellant there to perfect his record, the Circuit Court should have dismissed the appeal with a writ of procedendo to the justice court.
Ball, Brown Co. v. Sledge, 35 Miss. 214; Gardner v. Railroad Co., 29 So. 470; Ruff v. Montgomery, 35 So. 465; Land v. Coffey, 157 So. 89.
D.C. McCool, of Canton, for appellee.
Appellant has never, at any time, at any place, intimated or complained of the absence, or the lack of certification, or proper transferring, of any record; or that the justice of the peace had failed in any of the duties incumbent upon him by virtue of Section 66 of the Code of 1930. In fact he is in no position to complain; but he certainly should not be heard to complain that he failed to introduce some document vital to his cause or on account of some neglect, dereliction or laches on his part. The record was there in strict compliance with the law by the justice of the peace; these files were the basis of complaint on part of D. Myrick, the plaintiff in that suit, and he proceeded to go to trial with that record, and presented to the jury which rejected his claim the facts on which that claim was based. If there were any tears to shed, then was the time; that was appellant's opportunity. If there was any objection to the legal ceremony then taking place, it was his duty to speak up or forever afterwards hold his peace. He made no objections of any sort; neither specific nor of a general nature, and this record reveals no such objection to the record. If it was his duty to so object at the time, he failed in that duty; he cannot now be heard to complain; and, even if the record now before this court did not reveal to the contrary — as stated in Section 3403 of the 1930 Code of Mississippi — "in the absence of which objection in the Circuit Court there shall be a conclusive presumption that the defects in this clause mentioned did not exist in the court proceedings." And this section completely sweeps appellant's platform from under him, leaving him standing on nothing but empty space.
The appellant here, Myrick, moves to strike from the record the transcript of the judgment of the justice of the peace, in which court the case originated and was tried, especially the judgment of the justice of the peace and the appeal bond.
The case originated in a court of the justice of the peace and was appealed to the circuit court where the case was tried de novo.
The record here does not show that the judgment of the justice of the peace or any other part of the transcript was offered in evidence, and no part of said transcript was marked by the stenographer as a part of the trial of the case.
It does not appear from an examination of the record that the transcript of the justice of the peace or any part thereof was either competent or relevant to the issue involved in the lower court.
Although the movant here seems to take the position that the transcript of the justice of the peace was a necessary part of the evidence in the case, his position is not maintainable. There are cases where the copy of the judgment of a justice of the peace court on trial of the case on appeal in the circuit court is competent where it is relevant to the issue then on trial and where relevant may be offered without introducing the original judgment of the justice of the peace. Broadus v. Calhoun, 139 Miss. 28, 103 So. 808.
The transcript of the record in the justice of the peace court is properly a part of the record in this court, although not offered in evidence.
Motion overruled.
The appellant sued for and obtained a judgment against appellee in the sum of $175 in a justice of the peace court. From that judgment the defendant prosecuted an appeal to the circuit court within the time and in the manner provided by law. There the case was tried de novo, and resulted in a verdict for the defendant on the merits. The plaintiff then appeals.
At the conclusion of all of the evidence offered in the circuit court a motion was made by the plaintiff to dismiss the appeal there, and for a writ of procedendo to the justice of the peace court to enforce its judgment, on the ground that the defendant had failed to introduce in evidence the judgment, appeal bond and other proceedings, so as to show that the circuit court had jurisdiction of the appeal. The failure of the circuit court to sustain such motion is the sole ground urged here for a reversal.
In the absence of a plea setting up an affirmative defense, a defendant is not required to prove anything. Moreover, the plaintiff, when announcing ready for trial, during the empaneling of the jury, and the presentation of his evidence, was asserting each step of the way that the circuit court had jurisdiction to determine the cause and render judgment on the issue involved on the appeal. It is true that a litigant cannot waive a question of jurisdiction of the subject matter, but by his course of action he may assert the same, and if the record before us shows, as in the case at bar, that the circuit court did in fact have jurisdiction, it will be sustained. No objection is made to the completeness and regularity of the proceedings on the appeal from the justice of the peace court now disclosed by the record here.
On appeals to the circuit court in criminal cases, the state, on whom the burden of proof rests, is required to prove affirmatively all of the necessary jurisdictional facts, and to this end the transcript of the proceedings on appeal is introduced in evidence. Likewise, the plaintiff in civil cases in many instances finds it necessary to introduce in evidence the record on appeal when necessary to establish a basis for a recovery, but this is not required of a defendant when not carrying the burden of proof on any issue. At any rate it has already been held by this Court in the case at bar, on a motion to strike from this record the transcript of the proceedings and judgment of the justice of the peace, that such transcript is properly a part of the record in the Supreme Court, although not offered in evidence in the circuit court, Myrick v. Mansell, (Miss.), 184 So. 447, wherein the Court said: "It does not appear from an examination of the record that the transcript of the justice of the peace or any part thereof was either competent or relevant to the issue involved in the lower court."
The cases cited and relied on by the appellant are not in conflict with the foregoing view. Neither the absence of the transcript from the justice of the peace court when the case was tried in the circuit court nor on the record here is shown, and the judgment of the circuit court must be affirmed.
Affirmed.