Redus v. Gamble , 85 Miss. 165 ( 1904 )

Truly, J.,

delivered the opinion of the court.

The appeal bond in the sum of $250 filed by Gamble with the justice of the peace before the expiration of five days from the rendition of the judgment operated to remove the civil case to the circuit court. This right could not be lost by the failure of the justice of the peace to indorse his approval on the bond. The bond was conditioned as required by § 82, Code 1892, and was in a penalty of more than double the amount of the judgment appealed from, and the sureties are admitted to be perfectly solvent. This is all.that the law requires of a losing-party who desires to appeal a civil case from a judgment rendered by a justice of the peace, and he cannot be deprived of his right of appeal by the trial justice arbitrarily or ignorantly demanding an appeal bond in a greater penalty than that authorized by the statute and refusing to approve a proper bond tendered in due time. Winner & Meyer v. Williams, 82 Miss., 669 (s.c., 35 South., 308). The contention of the appellant that the bond was intended to operate as an appeal bond in both the criminal and the civil cases, and is therefore insufficient in amount, is not tenable. This appeal bond was payable to the party who had obtained the judgment, and its conditions are entirely distinct from those required in criminal cases under Code 1892, § 86. In civil cases, the amount of the appeal bond is regulated by the amount of the judgment appealed from, or the value of the property involved. In criminal cases the penalty of the bond is prescribed by the justice of the peace who tries the case. The one is to secure the payment of any judgment which may be rendered by the appellate court; the other, to insure the appearance of the defendant and the payment of any fine and costs imposed.

The action of the circuit court in issuing the writ commanding the justice of the peace to produce the original papers in the civil case was correct. It was the duty of the justice of the peace, under Code 1892, § 84, to transmit to the clerk of the circuit court a certified copy of the record of the proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant; and, upon failure to discharge this legal duty, it was competent for the circuit court to issue the necessary process to enforce its performance. Robinson v. Mhoon, 68 Miss., 712 (9 South., 887). While the writ issued by the circuit court is in the record denominated a¡ “writ of certiorari,” it was not issued in pursuance of Code 1892, § 89. Consequently it was not necessary to require the bond mentioned therein. This was not an effort to remove a case to the circuit court by certiorari, but was a writ to compel a derelict' officer to discharge a duty imposed upon him by an express statutory mandate in reference to a. case already duly appealed. And the writ was so considered and dealt with after the original papers were returned in obedience thereto. In passing upon cases brought before the circuit court by virtue of the provisions of sec. 89, the court is confined tO' an examination of questions of law arising and appearing on the face of the record and proceedings; but in the case at bar this course was not followed, but the ease was docketed and tried de novo, under Code 1892, § 85. This procedure was correct. Gamble was entitled to have the merits of his case passed upon by the circuit court, and the method adopted by the learned trial judge is that indicated and commended by this court in Robinson v. Mhoon, supra. It is the duty of the circuit court, upon proper-showing, to see that the rights of litigants are not impaired on account of any unwarranted action by justices of the peace, and in the instant case this was done, and properly so-.

Hpon the merits, the granting of the peremptory instruction was manifestly correct, even upon the testimony of the appellant himself. Conceding that he had any legal contract with the tenant who left his premises, the record fails to show that he suffered any - definite damage by reason of such leaving, or that the appellee had any knowledge of the existence of any contract between appellant and the tenant, if any such existed, or that appellee at any time either willfully interfered with or knowingly employed the tenant.

We see no error in the record.

Affirmed.