Reeves v. Hathcock ( 1915 )

Cook, J.,

delivered the opinion of the court.

This case originated in the court of a justice of the peace, upon the following statement of the cause of action, viz.:

“Original Account & Affidavit.

“Justice Court 1st District,

“T. C. Lanthrip, J. P.

‘ ‘ State of Mississippi, County of Monroe.

“Complaint.

W. J. Reeves, Trustee, v. Evans Hathcock.

“The plaintiff, W. J. Reeves, trustee, sues the defendant Evans Hathcock for the value of one bale of cotton, the property of the said plaintiff, of the value of one hundred dollars which the said Evans Hathcock, defendant, has converted to his own use to plaintiff’s damages one hundred dollars for which plaintiff brings this suit. This April 20, 1911.

“Bean & Stone, Attorneys for Plaintiff.”

“State of Mississippi, Monroe County.

• “Personally appeared before me the undersigned authority, W. Alfred Bean, attorney for W. J. Reeves, trustee, who on oath says that the above demand is just and true and owed by the party against whom charged and that no part of the same has been paid.

“W. Alfred Bean, Attorney for W. J. Reeves.

“T. C. Lanthrip, J. P. This the .first day of July, 1911.”

The transcript of the docket entries of the justice’s court are as follows:

“State of Mississippi, County of Monroe.

W. J. Reeves, as Trustee, v. Evans Hathcock.

“Damage suit for one hundred dollars on a bale of cotton bought by defendant.

“Issued April 20, 1911, returnable, May 6, 1911.

“Copy of the judgment in styled case May 6, 1911, came the parties to the suit by an agreement of said parties continued until the first day of July, 1911. Taken under advisement by the court until the fifth day of August, 1911. After hearing all the testimony in the case, after consideration of the court, finds in favor of defendant because he bought the bale of cotton in good faith, as proven, without notice either actual or constructive at the time purchase of the plaintiff lien and for a valuable consideration; and tax plaintiff with the cost of the suit. Aug. 5, 1911.

“T. C. Lanthrip, J. P. ”

The plaintiff appealed to the circuit court; and when the above record was filed in the circuit court the. defendant below, appellee here, filed the following motion:

‘ ‘ Comes now the defendant by the attorney and moves the count to dismiss this case and the appeal herein:

“First. Because the case was tried in the justice of the peace court on July 1, 1911, and taken under advisement and judgment rendered and entered August 5, 1911, a period of thirty-five days from the date of trial.

“Second. Because the judgment of the justice of the peace is null and void,

“Third. Because there is and was no valid judgment in the court of the justice of the peace, from which to appeal, or upon which to predicate an appeal to the circuit court.

“Fourth. For other good and sufficient reasons.”

After the filing of this motion the following agreed statement of facts was submitted to the court, viz. :

“It was then admitted by the attorney for the defendant that Esquire T. C. Lanthrip held his court on the first Saturday of each month, and that July 1, 1911, and August 5, 1911, were his regular court days for these months. This was all the evidence submitted on the said motion.

“Thereupon, after the argument of the counsel on said motion pro and con and due consideration had by the court, it was the order and judgment of the court that the said motion be sustained, and the appeal dismissed, plaintiff and his .sureties on the appeal bond be taxed with the cost. ’ ’

We think the circuit court erred. The judgment shows that on August 5th the justice of the peace, “ after hearing all the testimony in the case,” rendered his judgment.

It is true that his record shows that the justice of the peace took the case- under advisement until the term at which he rendered his final judgment; but we are unable to say from this statement whether or not he heard the testimony on July 5th. It will be presumed that the justice proceeded in the regular way, and, besides, the case is tried anew in the circuit court without reference to any irregularities or lack of testimony in the court below.

Reversed and remanded.