The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-04
DECISIONS OF THE HIGH coUHT
ERRORS AND APPEALS.
OCTOBER TERM, 1866.

Willis Barnes, County.
Justice Harris deliVered the 0pisio,
Of The Court
This is an appeal from tho County Cur
of Smith county TO the Circuit Court, and 1
writ Of error from tho Circuit Court to THU
Court.
A Judgment for plaintiff and appellant
here, was rendered in the County Court be
low, and an appeal taken from that judg
ment to the Circuit Court. On the trial o.
the cause in the Circuit Court, tho pldiniit
IN error here moved to try tho cause upon the
record, as sent from the Court below, which
the Circuit Court refused, and proceeded Il
try the same on its merits de ROpo.
The defendant in attachment then moved
to quash the attachment, because II was
sued ont by deputy clerk, whose appoint
ment had not been approved by the Court OF
the Judge thereofin vacation as required by
the statute,
Upon proofo this fact, the Circuit Court
quasLed the attachment, and rendered judg.
ment against the plaintiff In attachment, for
COSTS and the cause is brought here on writ
of error. The question presented for our de-
cisiOn is, whether, under the provisions OF
| the County Court lay--sect "a, p. 49, session
acts of 1865, an appeal" from the Judgment
or decree OF that Court to the Circuit Court
entities the parties to trial Dc R0cO OH the
merits, or whether it is to DO regarded as
are appeals to the High Court Of Errors and
| Appeals under our system.
| In the case Of Wiscart vs. Dauclly. 81 Dali
las 1927, Oh. just. Ellsworth says, IAN appeal
is process of civil law origin, and removes
a cause entirely suhjecting the fact as we'll
as the law to review and re-trial. While n
| AZ La.
origin and removes nothing for examination
10, Chief Justice Marshall Pennington vs.
Coye ID, Cranch 81, and Yeaton VS.. the Uni
ted States 5tn Cranc, 2cJ, ! Beoneut civil
law, D. 945, Br, Parl cases 20, 500.
Does the statute in question creating the
county Court aud providing for the revision
Of its judgments and DEGREES observe this
technical distinctions
In the Cd section of the act, providing for
"appeats" and certiorari from justices courts,
special provision is made, for trial de
moro, and by the same laws, applicable to
such cases in the courts appealed from. 1t is
evident from the language here used, that
the legislature did not understand the
granting of the process of appeal" as i'm
porting itself a trial de nero upon the law and
facts of the case or else they would not
have been SO particular as to insert this Ian
guage.
But again. in section 10, in making provi-
sion for the revision of the judgments of
county courts, in criminal cases, they pro-
vide for an "appeaI therefrom, to the next
term of the circuit court of the county with
out bill of exceptions, writ of error, OF super
sedeas, upon giving bond" &c,
"as provided by law in other respects for
dpptals IN criminal cases from the circuit courts
to the high court of errors and appeals of
this State, and said cause shall be
proceeded within said Circuit court, as other
cases therein, "apon the transcript Of the record
thereof and charges therein contained, but no
such appeal shall be granted from said
county court, when the same has been tried
therein by Jury"
In the first place it is evident that in this
section they did not intend to use the word
appeals in its technical sense, because they
provide for the appeal without bill of excep-
tions and without writ of error, neither of
which are applicable to technical appeals,
which removes the whole cause upon both
the law and facts for trial de moro, and sec
ond because the act further uses the wold
appeals as synonymous with Urit Of error, in
this immediate connection, where it says
upon giving bond" &c, Z" as provi- !
ded by law in other respects for appeals in
high court of errors and appeals of this
State" Our law does not provide
for appeals technically such in criminal cases
from the circuit court to the high court: But |
provides only for ,crits of error and writs of |
error bonds.
And third because it is clear that the Sec |
ion intended to confne thJ circuit court to |
! trial upon the Transcript of the record |
hereof, and charges therein contained" in
analogy to proceedings of IA similar character
n the high court of errors and appeals.
1t seems obvious, therefore. that the Leg
stature did not mean to use the word appeal
lere, in its technical sense or in other words
o direct trial de a0UO on the merits--as
construction here would wholly defeat the
bject in view and render this sect ion 10 re-
Section "a Which contains the
pecial provisions for appeals" in
ivil cases,g now under consideration,
ffords evidence equally conclusive, that
he word appeals" as used in this act, was
OF designed by the Legislature to be used
D its original technical sense, but in more
eneral sense, as Including or embracing
by writ of error, and certiorari.
ee Burwell's Law Dict. title appeal"
Section "a provides that either party ag.
rleVeu Dy bno JuuSunenU OF uecree OF Gne
ourt may appeal, &ca-bond and security,
to be on like terms and con-
itions as appeals in like cases, from the
ircuit Court and Chancery Courts to the
Ugh Court of Errors and Appeals. There
no provision by our law by which causes
ay be taken by appeal from the Circuit
curtis. But appeals are allowed i'll Chan
Try cases. Not, however, appeals in the ,
clinical sense, bnt re-hearing upon the
Ise as presented to the Court below.
1t was, therefore, error for the Circuit 7
ouft to try the case de moro on the merits. I
ut it should have confined itself to the
Sc presented by the record before it. !
1t follows that the investigation de aouO
to the appointment and qualification of I
G officer, before whom the attachment was :
ed out, was erroneous, and that the judy
ent of the County Court should have been q
irmed
The Court proceeding to render tho judg- y
mt, which should have been rendered in .
@ Circuit Court, orders that the Judgment :,
the Circuit Court be reversed, and that II
lgment is to be entered here, affirming &
. Judgment of the Circuit Court, in favor W
the plaintiff, in attachment, with DANA Il
3.