Fowler Butane Gas Co. v. Parish

GILLESPIE, Justice:

This case originated in the county court where a judgment was entered in favor of James Howard Parish, plaintiff in the county court and appellee here, against Fowler Butane Gas Company, defendant in the county court and appellant here. Appellant' perfected an appeal from the county court to the circuit court by filing a supersedeas bond and giving notice to the official court reporter. In its notice to the official court reporter of the county court, appellant designated all of the testimony of the witnesses and all exhibits, rulings of the court, and motions, being all of the notes taken by the official court reporter at the trial. It did not designate as a portion of the record on appeal the pleadings, verdict, or judgment, and the clerk did not include these documents in the record sent up to the circuit court.

The circuit court denied the petition for a writ of certiorari and sustained a motion to docket and dismiss the appeal. From the order of the circuit judge denying the writ and dismissing the appeal, appellant perfected an appeal to this Court with supersedeas.

This Court granted a petition for a writ of certiorari and ordered the writ issued and passed appellee’s motion to docket and dismiss until the case was docketed for hearing on the merits by this Court. See Fowler Butane Gas Company v. Parish, 175 So.2d 129 (Miss.1965), for a history of the case.

The clerk of the county court has complied with the writ of certiorari and has completed the record by sending up the pleadings, verdict, and judgment of the county court. The record is now complete.

Appellant assigns as error the action of the circuit court in dismissing the petition for writ of certiorari filed before that court and in sustaining the motion to docket and dismiss the appeal. The former opinion of this Court on the petition for writ of cer-tiorari filed in this Court has disposed of the issues raised by the two assignments of error of appellant. The record is now complete and there is no basis upon which this Court could sustain the motion to dismiss the appeal.

Appellee contends that the Court should affirm because no error has been assigned •concerning the merits.

In Schwartz v. McKay, 184 Miss. 422, 185 So. 200 (1938), 184 Miss. 422, 185 So. 811 (1939), this Court held that if a circuit court wrongfully dismisses an appeal to it from the county court the appellant has not had his day in the circuit court which the statute contemplates. The Supreme Court permitted an appeal for the purpose of correcting the circuit court’s error in dismissing the appeal although the case would not otherwise have been appealable to this Court because the case had originated in the justice of the peace court. In the Schwartz •case, supra, the Court reversed the action of the circuit court in dismissing the appeal and remanded the case to the circuit court.

We hold that when the circuit court erroneously dismisses an appeal from the county court and it is necessary for the appellant to appeal to this Court to correct the circuit court’s error in dismissing the appeal, the case should not be heard here on the merits but should be remanded to the circuit court for a hearing as contemplated by Mississippi Code Annotated section 1616 (1956).

Under the posture of this case, this Court is not concerned with the merits of the appeal but only with whether the circuit court was in error in denying the writ of certiorari and in dismissing the appeal. We hold that the circuit court was in error and its action in so doing is reversed and the case is remanded for hearing of the appeal -on the merits as contemplated by the statute.

The motion filed in this Court to dismiss the appeal is overruled; the case is reversed and remanded.

Motion to dismiss overruled; reversed and remanded.

ETHRIDGE, P. J., and RODGERS, BRADY and SMITH, JJ., concur.