Porter v. Fooshee , 41 Miss. 337 ( 1867 )

Harris, J.,

delivered the opinion of the court.

The plaintiff in error sued out a writ of replevin, under the act of December, 1862, before a justice of the peace, for twelve bales of cotton, which was levied on nine bales, the other three bales returned not found.

A trial was had before the justices and a jury, under the statute, and the jury found a verdict for plaintiff according to the statute, but assessing the value of the whole nine bales at $1,350, their aggregate value. Upon this verdict, judgment was entered for plaintiff for said sum and cost.

An appeal was taken to the Circuit Court, and at the October term, 1866, the defendant moved the court to quash the appeal bond and dismiss the cause, because the verdict of the jury was contrary to law; which motion ivas sustained by the Circuit Court, and cause dismissed.

To this ruling of the court exceptions were taken and allowed, and the cause prosecuted here by writ of error.

By the 18th section of the act of December, 1863, pp. 155-6, under which this proceeding was instituted, and providing for an appeal to the Circuit Court, “the said Circuit Court” is required, at the return term of the appeal, “ to empanél a jury, and hear and determine the said cause mew on its merits, in a summary way.”

It was therefore erroneous for the Circuit Court to dismiss the cause upon .the ground stated in this motion. ■

Let the judgment be revised and cause remanded, and a venire de novo awarded, that the cause may be heard and determined “ anew on its merits,” as directed by the statute.