Bull v. Harrell , 8 Miss. 9 ( 1843 )

Mr. Justice Turner.

This case is submitted on the plea of the defendant in error to the writ of error, on the ground that the plaintiff had, at a previous term, brought up the case by appeal, and that, the same was dismissed by this court, after which this writ of error was sued out.

It appears from the record that the appeal was dismissed for want of jurisdiction, and the question is, whether a dismissal for that cause will bar or preclude the party from suing out his writ of error. Although the language of the statute of 1822 on this subject is very explicit, “that after the dismission of an appeal, writ of error or supersedeas in the supreme court, no appeal, writ of error or supersedeas shall be allowed,” Rev. Code, p. 156, sec. 33, yet this statute, like all others of a general nature, has been liberally construed, to answer the ends of justice. Cases have occurred where these dismissals have taken place without any fault of the party, but for some irregularity over which he had no control, such as the insufficiency of the appeal bond, as prepared by the clerk, or by accident or death of the appellant or plaintiff in error. In such cases the court has not considered the party barred of his constitutional right to be heard in the appellate court. This is a highly important and valuable right, and should not be denied but upon the most clear and satisfactory grounds.

Soon after the passage of the act above recited, which was enacted, indeed, in 1818, and afterwards incorporated into the Revised Code of 1821-2, two cases occurred within my knowledge, (for I was of counsel for the defendants in error, and moved for and obtained the dismissal of the cases,) where the court permitted the plaintiffs in error to sue out and prosecute a second writ of error. They were the cases of Pierce v. Brand and Pierce v. Hunt. On the second writs of error being brought, I moved the court to dismiss them because the same cases had been once dismissed. The court overruled the motions, being satisfied that the plaintiffs were not in fault, and that the statute should have fi liberal construction to answer the ends of justice. These cases were then tried on their merits, and the judgments were reversed. I am under the impression that the same view of this matter has since been taken by the court, but I cannot name the cases.

It appears that in the case now before us, the appeal was not properly before us, and that the party is not barred of his writ of error. The plea is therefore overruled.

The case is also submitted on the merits, and we are of opinion that the judgment be reversed for misdirection of the court to the jury. The note sued on was payable at the Aberdeen and Pontotoc Railroad and Banking Company, but made payable to George W. Harrell and others, and was not the property of the bank, and a tender of the notes of the bank was not, of course, a legal tender.

Judgment reversed, and cause remanded for a new trial.