Summary
holding that testimony offered in the circuit court on appeal "was wholly incompetent" because "the appeal was to be considered solely upon the record as made in the county court"
Summary of this case from W-T Holdings, LLC v. GilchristOpinion
No. 34233.
October 7, 1940.
1. APPEAL AND ERROR.
Where suit filed in a justice court did not proceed to judgment there but was transferred to county court for trial on consent of parties, the statute requiring that appeals from justice courts shall be to the county court did not prevent an appeal to the Supreme Court from a judgment rendered by the circuit court affirming the judgment of the county court (Code 1930, sec. 705).
2. STATUTES.
The statute relating to loss of a record of a pending suit should be construed in connection with statute relating to loss of a record recorded or enrolled in a book and the statute relating to loss or absence of a record when loss was first discovered during trial (Code 1930, secs. 2335-2337).
3. EVIDENCE.
In action on a note wherein loss of part of original note was not discovered until during progress of trial in county court, plaintiff was entitled to have copy of note admitted without giving notice to defendant of intention to substitute copy for original note in view of statute relating to loss of a part of record first discovered during trial of an action (Code 1930, secs. 526, 527, 2337).
4. COURTS.
On appeal to circuit court from judgment of county court, testimony taken on motions for a new trial and to set aside circuit court's judgment affirming county court judgment was incompetent, since by statute the appeal was required to be considered only upon the record as made in county court (Code 1930, secs. 526, 527, 704).
5. COURTS.
On appeal to circuit court from a judgment of county court, judgment appealed from should be affirmed if no prejudicial error appears in record, and, if such error is found, circuit court must reverse the action, whereupon the statute requires that the cause be transferred to issue docket of the circuit court for trial de novo, and after such trial de novo the circuit court can entertain a motion for new trial and hear evidence in support thereof, but not otherwise (Code 1930, sec. 704).
APPEAL from the circuit court of Lauderdale county; HON. ARTHUR G. BUSBY, Judge.
Ethridge Ethridge, of Meridian, for appellant.
It was never contended that the partial destruction of the note was first discovered on the trial of the cause. Therefore, it was and became the duty of the appellee to comply with the requirements of Section 2336, Code of 1930.
There was never any attempt made to comply with the statute; no petition filed for the substitution of this record; no notice given as provided by law, and it does not appear from the record when the discovery of the mutilation and destruction was first discovered.
In construing a statute the chief aim of this court is to reach the real aim of the Legislature and give a construction that will give force that was intended by the Legislature.
Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; 3 L.R.A. (N.S.) 541, Ann. Cas., 1914B, 392; Canal Bank and Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552; Huckabee v. Nash, 182 Miss. 754, 183 So. 500.
In our humble opinion the Legislature intended to prevent from occurring just what actually occurred in the instant case, i.e., part of a record disappearing and thereby prevent the actual inspection of the entire original record which sometimes does show an erasure or an alteration of the original.
This cause was not appealed to the county court; it was transferred before trial on agreement to the county court and there tried for the first time and stands in the same category as a case originally filed in the county court. It having been tried in county court, accordingly, no appeal was had to the county court, simply a transfer of the cause to that court. Therefore, the contention of appellee's counsel is without merit.
Williamson, Riddell Riddell, of Meridian, for appellee.
This case was not appealable to this court. Section 705 of the Mississippi Code of 1930, among other things provides that "there shall be no appeal from the circuit Court to the Supreme Court of any case, civil or criminal, which originated in a justice of the peace, municipal or police court," etc.
Section 2336, Mississippi Code of 1930, upon which appellant relies, is not applicable. There was not any part of the declaration lost or destroyed; there was not any part of the pleadings in the case lost or destroyed; a true copy of the note in question was filed with the declaration, in fact copied into the declaration itself. There is proof in the record that the note was in the exact language as copied into the declaration and the exact words and figures as copied into the declaration; that note was shown to Mr. I.W. Peebles, the appellant, and the matter of payment was discussed with him by one of counsel for appellee before suit was filed. Between the time it was filed with said justice of the peace and the time the loss was discovered in court we know nothing of it.
Argued orally by F.K. Ethridge, for appellant, and by T.D. Riddell, for appellee.
The appeal here is from an affirmance by the Circuit Court of Lauderdale county of a judgment rendered by the county court thereof in favor of the appellee on a promissory note. The suit was originally filed in a justice of the peace court, but did not proceed to judgment there, for the reason that the parties agreed to transfer the cause to the county court for trial. In the county court the cause occupied the same status as if it had been first instituted in that court. No appeal had been perfected from the justice of the peace court to the county court, since there had been no judgment rendered to appeal from. Therefore, section 705, Code of 1930, does not prevent the appeal to this Court.
A copy of the note sued on was made a part of the declaration, as filed in the justice of the peace court, in compliance with sections 526 and 527, Code of 1930. The original of the note was thereafter attached as an exhibit to a deposition taken while the case was pending in the justice of the peace court; but due to the fact that the same was badly worn, or for some other reason, a part thereof, including the date and signature, had become detached and lost before the note was introduced in evidence at the trial in the county court. Its admission was objected to by the appellant, and is now assigned as error. It was conceded, however, that the piece of paper offered in evidence was, in reality, a part of the note which had been filed in the justice of the peace court as an exhibit to the deposition. But the appellant would not agree that the original note bore date of October 17, 1930, as shown by the copy which had been made a part of the declaration, and as testified to in the deposition identifying the exhibit thereto, it being the contention of the appellant that the note was executed at a time prior to October 17, 1930, such as would cause the same to be barred by the statute of limitation, section 2292, Code of 1930. However, there was no plea of the statute of limitations filed, nor was the execution and delivery of the note, copy of which was alleged to have been set forth in the declaration, ever denied in any manner, except by a plea to the general issue. Moreover, the proof disclosed that the attorney for the appellee had correctly copied the original note as a part of the declaration in the case. Section 2336, Code of 1930, is invoked by the appellant in support of his contention that the note was inadmissible in evidence, on the ground that he had no notice that the appellee would undertake to substitute or supply the part of the record which had been lost or destroyed. Section 2336 should be construed in connection with section 2335 and section 2337 of said Code; and if either of said sections have any application to the situation presented by the record before us, the question would be controlled by section 2337, which requires no notice of the so-called substitution, since the loss of a part of the note is not shown to have been discovered until during the progress of the trial in the county court.
The testimony taken in the Circuit Court on a motion for a new trial, and a further motion to set aside the judgment, whereby the Circuit Court had affirmed the judgment of the county court, and which testimony tended to show that the note was executed prior to October 17, 1930, was wholly incompetent under section 704, Code of 1930, for the reason that the appeal was to be considered solely upon the record as made in the county court. When so considered, the judgment appealed from should be affirmed if no prejudicial error be found. Had such error been found it would have been the duty of the Circuit Court to reverse the case, whereupon the statute requires that it be transferred to the issue docket of the Circuit Court for trial therein de novo. After such trial de novo the Circuit Court would be entitled to entertain a motion for a new trial, and to hear evidence in support thereof, but not otherwise.
We are of the opinion that the action of the Circuit Court in affirming the judgment of the county court on the record as sent up to the Circuit Court for review was correct.
Affirmed.