Kelley v. Ladies' Aid Soc. of Pleasant Hill Schoolhouse

^* Corpus Juris-Cyc. References. Appeal and Error, 3 C.J., pp. 406, n. 28; 422 n. 25; 4 C.J., p. 581, n. 38. The appellee, Ladies' Aid Society of Pleasant Hill Schoolhouse, brought this action in the court of a justice of the peace of Attala county against appellant, L.T. Kelley, to recover the sum of one hundred fifty dollars. There was a judgment in that court for the amount sued for with costs. From that judgment appellant appealed to the circuit court, where appellee recovered a judgment for only twenty-five dollars and costs. From that judgment appellant prosecutes this appeal.

Section 86, Code of 1906 (section 66, Hemingway's Code), provides, among other things, that in all civil cases originating in the court of a justice of the peace where the amount in controversy exceeds fifty dollars either party shall be entitled to an appeal to the supreme court as in cases originating in the circuit court. The statute is a limitation on the right of appeal in civil cases originating in the courts of justices of the peace. In construing this statute, it was held in Ward v.Scott, 57 Miss. 826, and Wimbush v. Chinault, 58 Miss. 234, that, if the circuit court judgment appealed from be less than fifty dollars, an appeal cannot be taken by the defendant to the supreme court, notwithstanding the amount demanded and recovered in the justice's court be greater than fifty dollars.

The judgment of the circuit court against appellant, appealed from, is not in excess of fifty dollars. By his appeal appellant seeks to have the judgment vacated and set aside. The amount of the judgment alone is involved on the appeal. The circuit court judgment represents the amount in controversy. To the same effect as the cases above cited are the cases of Leake County v.Carr, 100 Miss. 91, 56 So. 345, and Pass Christian v.Lizana, 106 Miss. 470, 64 So. 209. This court, therefore, is without jurisdiction of the appeal; and jurisdiction cannot be conferred on the Supreme Court by consent of the parties, either express or implied. Switzer v. Benny, 94 Miss. 209, 48 So. 401.

It is true this question of jurisdiction is not raised by either of the parties in this court; but that is not necessary. Where the supreme court is without jurisdiction, it will raise the question of its own motion, and dismiss the appeal. Pickett v. Pickett, 1 How. 267; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A. (N.S.) 785, 17 Ann. Cas. 611; Id. (Miss.) 47 So. 666; Switzer v. Benny, supra. Appeal dismissed.