Opinion
April 11, 1949.
1. Appeal — certificate of justice of the peace essential to jurisdiction circuit court.
In an appeal from the court of justice of the peace to the circuit court, a certified transcript of the proceedings in the justice court is essential to the appellate jurisdiction.
2. Appeal — lack of jurisdiction of trial court — may be raised in supreme court.
(This headnote omitted by a directive from the judges quoted in Reporter's note infra, which see.)
Headnote 1 approved by Roberds, J.
APPEAL from the circuit court of Lincoln County; J.F. GUYNES, J.
Garth Cassedy, for appellant.
George H. Ethridge, Assistant Attorney General, for appellee.
Reporter's Note: When this case was reached for the preparation of its headnotes, the attention of the judge who wrote the opinion was called to the amendment made in Sec. 3403, Code 1930, now Sec. 1987, Code 1942, reading as follows: "And no judgment in any case originating in a justice court or a municipal court, and appealed to the circuit court, shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was not properly certified or was not certified at all, or was missing in whole or in part, unless the record further shows that objection on that account was made in the circuit court, 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 circuit court proceedings."
This statute was not mentioned in the briefs for either side nor was McCluney v. State, 162 Miss. 333, which followed it; on the contrary the arguments proceeded as if there were no such statute. This situation was not discovered until the adjournment of the term, and in order to meet so far as now possible the inadvertence which would have been embodied as headnote 2, the judges of the Supreme Court have issued the following directive dated September 16th, 1949, signed by all the judges: — "To the Supreme Court Reporter: You are directed to omit what would otherwise be headnote 2 in Travillion v. State decided by the Supreme Court on April 11, 1949, there having been no purpose to disregard Sec. 1987 Code 1942, the fact being that the section was not called to the attention of the Court in any brief or argument in the case."
(Signed) Harvey McGehee W.G. Roberds J.P. Alexander L.A. Smith, Sr. M.B. Montgomery Lee D. Hall
Appellant was convicted in a justice of the peace court of the unlawful possession of intoxicating liquor. He appealed to the circuit court, where he was again convicted, from which he appeals here.
On this appeal, he raises the point, for the first time, that the circuit court had no jurisdiction for the reason the transcript of the proceedings in the justice of the peace court, filed in the circuit court, was not authenticated by the certificate of the justice of the peace.
(Hn 1) This Court, in a number of cases, has held that the certificate is essential to vest the circuit court with jurisdiction. Sections 1199 and 1200, Code 1942; McPhail v. Blann, Miss., 47 So. 666; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A., N.S., 785, 17 Ann. Cas. 611; City of Greenwood v. Weaver, 96 Miss. 604, 50 So. 981; Allen v. State, 98 Miss. 192, 53 So. 498; Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481; Salers v. State, 142 Miss. 88, 107 So. 375; Jones v. State, 155 Miss. 364, 123 So. 882, 124 So. 374; Lee v. State, 190 Miss. 877, 1 So.2d 492, 2 So.2d 148. Other cases might be cited.
Lack of jurisdiction in the lower court can be raised for the first time here. Rodgers v. City of Hattiesburg, supra.
The State cites Calhoun v. State, 86 Miss. 553, 38 So. 660, holding that under the same state of facts presented by this record, the defendant could not, for the first time, avail in this Court of the failure of the justice of peace to authenticate his record. However, it is pointed out in Rodgers v. City of Hattiesburg, supra, that the Calhoun case had later been overruled.
The writer desires to say that, as an original proposition, he would have been in accord with the rule announced in the Calhoun case. However, the rule is otherwise and is binding until and unless the cases announcing it are overruled.
The judgment of the circuit court is reversed, and the case is remanded, with directions to that court to dismiss the appeal to it and award a writ of procedendo to the justice of the peace court to enforce its judgment, unless the appellant shall perfect the record of the proceedings from the justice of the peace court.
Reversed and remanded.