Johnson v. Richey Land Improvement & Mfg. Co. , 126 Miss. 240 ( 1921 )

Andekson, J.,

delivered the opinion of the court.

This is a proceeding by the appellee, the Belzoni Land Company, begun in the circuit court of Washington county, against appellant, the present state revenue agent, under section 3173, Code of 1906 (section 2514, Hemingway’s Code), to re-establish the lost record of the proceedings (other than the judgment) in a cause in said court of the same style as this — in fact, the same case — in which a final judgment had been rendered in 1915. There was a a judgment to re-establish the record as asked for by the appellee, from which appellant prosecutes this appeal.

There are two questions presented for the consideration of the court: First, whether the judgment of the court below is such a judgment as may be appealed from under our statute; second, if an appeal is allowed, whether or not the court below erred in trying the cause without the consent of appellant, in view of the fact that process had not been served on appellant for as much as thirty days before its return day. These questions arise out of the following state of facts:

In the early part of 1915, J. C. Johnson, the predecessor in office of appellant, instituted proceedings under section 4740, Code of 1906 (section 7058, Hemingway’s Code), to back-assess appellee, a corporation under the laws of this state, for the years 1909 to 1914 inclusive. The board of supervisors made an order refusing to approve such back assessment by the revenue agent, from which action of the board the revenue agent appealed to the circuit court. At the December term, 1915, of the circuit court, there was a trial of this appeal, and a final judgment entered reversing the judgment of the board of supervisors, and back-assessing the capital stock of appellee for taxes at thirty thousand dollars for the years 1909 to 1914 inclusive.

The taxes based on such assessment not having been paid, the appellant, the present State Revenue Agent, in July, 1918, filed a bill in the chancery court of Humphreys county against appellee, for the purpose of collecting same. In the meantime, the record of the proceedings, except the final judgment, in said cause in the circuit court had been lost; and counsel for appellee, conceiving that said record Avould be required for the purpose of evidence in the trial of said chancery cause, on the 20th of May, 3 920, filed a petition in this cause in the circuit court of Washington county, wherein a final judgment had been rendered as above set out, setting up the loss of said record, the necessity for its re-establishment for use as evidence in said chancery court cause, with which petition there was exhibited what Avas alleged to be a substantial copy of said lost record, and praying for an order of court re-establishing said record. As required by the statute (section 3178, Code of 1906 [section 2514, Hemingway’s Code]) process on this petition was issued and served on the appellant as the opposite party in interest. It was issued on May 20, 1920,' returnable to' the June term, 1920, of the circuit court of Washington county, which, under the law, convened the first Monday in June — there-fore, in that year, on the 7th of the month — and was served on appellant May 27th, less than thirty days before the return day thereof.

On the return day appellant filed an answer to said petition, denying some of its material allegations, and seting out wherein sama were untrue. During said circuit court, and on June 15, 1920, without the consent of appellant, a trial of said cause was had, resulting in a judgment re-establishing said lost record, as prayed for by appellee.

We will first consider the question whether, under the law, there is any appeal from such a judgment. Chapter 91, Code 1906 (chapter 47, Hemingway’s Code), is devoted exclusively to the subject of the re-establishment of lost, stolen, or destroyed records. Sections. 3173 to 3176, inclusive (sections 2514, to 2517, inclusive, Hemingway’s Code) of that chapter provide for the re-establishment of lost, stolen, or destroyed court records. Section 3173, Code of 1906 (section 2514, Hemingway’s Code), provides as follows:

“Whenever the records of any court, or any portion thereof, shall be stolen, lost or destroyed, the same may be substituted or re-established. Any person interested therein may file a petition, under oath, in the court the record of which is sought to be substituted or re-established, making all persons having an interest therein parties thereto. The petition -must show the former existence of the record, its date and the. date of the respective parts thereof as near as can be; it must disclose the interest of the parties and the loss or destruction or theft, and must be accompanied by what the petitioner shall aver to be a copy of the record., in all -material particulars which is sought to be re-established. Process shall issue as in other cases, and unknown and nonresident defendants may be made parties by publication, as in chancery. The defendant shall answer the petition, under oath, on the return day, if he controvert the same, and shall specify definitely the particulars, if any, in which the alleged copy is incorrect, and shall file copies of all portions of the record which he may charge to have been omitted. The court shall hear the evidence and the witnesses, ore tenus or by depositions, and shall find the facts and adjudge or decree accordingly. It may cause such amendments and alterations to be made in the alleged copies as may be proper, and, when amendments are so made, an engrossed copy shall be prepared under the direction of the court, and the same shall be filed and become to all intents and purposes the record.”

And section 3175, Code of 1906 (section 2516, Hemingway’s Code)', provides:

“If the record lost, destroyed or stolen be that of a pending suit, or a part thereof, process on the petition for its substitution may be returnable on any day of a term of court, and it may be served on the attorney of the party defendant to the petition; but in such case the plaintiff or complainant if he so elect, may bring another suit on the same cause of action.”

' It will be observed that all persons having any interest are required to be made parties, on whom process is to be served as in other cases; and unknown and nonresident defendants may be .made parties by publication as in chancery;, and evidence is heard on the trial from the witnesses ore tenas or by depositions, and judgment rendered accordingly. And if it is a record sought to be re-established in a pending cause, process on the petition may be made returnable on any day of a term of court.

The proceeding here is to re-establish a lost record in a case already finally determined — a case in which the circuit court had, some years prior, rendered a final judgment. This is a new and independent proceeding from the original cause. The pleadings and issues raised' thereby are entirely different. It is as much an original cause as was the cause out of which it grew; and the judgment of the court is as much a final judgment as the judgment rendered in that cause. Section 33, Code of 1906 (section 8, Hemingway’s Code), provides that— “An appeal may be taken to the supreme court from any final judgment of. a circuit court in a civil case, not being a judgment by confession, etc.”

In our opinion, the' judgment in this case is such a judgment as this statute allows an appeal from, because it is a final judgment in a civil cause.

The remaining question is whether the cause could have been tried under the law, at the first term of court, without the consent of appellant (as was done), in view of the fact that appellant had not been served with process for as much as thirty days before the return day thereof.

The purpose of section 783, Code of 1906 (section 566, Hemingway’s Code), was to abolish in part what was known as the imparlance term in the circuit courts. Among other things it provides:

“But such issue of fact shall not be tried before the next succeeding term without consent of parties, except in actions in which the defendant has been personally served with process for thirty days before the return day.”

We are unable to see why a cause of this character should not be governed by the same course of procedure as other civil causes in the circuit courts. There is nothing in the' statutes providing for the re-establishment of lost records to the contrary. In fact, they seem to contemplate the same practice and procedure (except as to service and return of process in a case to re-establish a record in a pending suit) as in other causes in those courts. Section 3173, Code of 1906 (section 2514, Hemingway’s Code), expressly'provides that process shall issue as in other cases, and the defendant shall answer the petition on or before the return day.

In the‘opinión of the court, it was error for the court below to try this cause at the return term, without the consent of appellant.

Reversed and remanded.