
    Louisville & Nashville Railroad Company v. Haynes, Caruthers & Hyde.
    
      (Nashville.
    
    December Term, 1904.)
    AFFIRMANCE. Of justice’s judgment for Ms failure to file papers, on production thereof by appellee.
    Where, in an appeal from a judgment of a justice of the peace, the justice fails to file the papers in the circuit court within the time required by statute, the appellee, upon production of the papers by him with a motion for affirmance, because of such failure of the justice, is entitled, as a matter of right, to his judgment of affirmance, and this motion for affirmance cannot be intercepted by counter motion upon the part of the appellant to be allowed to file the papers and prosecute his appeal.
    Code cited and construed: Secs. 4873-4875 (S.); secs. 3858-3860 (M. & V.); secs. 3142-3144 (T. & S. and 1858).
    Cases cited and approved: Hayes v. Kelley, 111 Tenn., 294.
    Case cited and distinguished: Humphrey v. Huxhphrey, 1 Swan, 154.
    FROM WILLIAMSON.
    Appeal from the Circuit Court of Williamson County. — J. A. Cartwright, Judge.
    Henderson & Henderson, for Railroad.
    Edqer Haynes, for defendants.
   Mr. Chief Justice Beaud

delivered the opinion of the Court.

In this case there was a judgment rendered by a justice of the peace, from which the plaintiff in error appealed to the circuit court. The magistrate failed to file the papers in the cause as required by section 4873 of Shannon’s Code, so that, a few days after the term of the court to which the appeal was taken began, defendant in error presented the papers and moved for an affirmance of this judgment. The motion was resisted by the plaintiff in error, and at the same time the. court was asked to permit the latter “to prosecute his appeal.” This was denied, and the affirmance was entered in accordance with the motion of the defendant in error.

The action of the circuit court in this regard is assigned for error. The section referred to provides as follows: “Whenever an appeal shall be prayed and perfected from the decision of any justice of the peace in this State, it shall be the duty of said justice to file the papers in the case in the office of the clerk of the circuit court at least five days before the meeting of the circuit court. . . . Any justice of the peace failing to comply with this - section shall have no fees or costs.”

Section 4874 provides thus: “If the papers are not filed within the time prescribed, the appellee may on production thereof have an affirmance of the justice’s judgment with costs.”

These two sections are taken from the act of 1809. In view of this last section, it is clear that, nothing else being in the way, the judgment in this case was properly rendered. Under it the court had no alternative, upon a default being shown on the part of the justice in failing to file the papers as required by section 4873— the same being produced by appellee — but to grant a judgment of affirmance. But it is said, and properly, that the rigor of section 4874, which is really section 2 of chapter 63 of the Acts of 1809, is moderated by sec. 2, c. 119, of the Acts of 1811, brought into the Code, and there .numbered section 4875. This section is as follows : “If the justice fails to return the papers within the time prescribed, but returns them during the term to which the same are returnable and the appellant fails to appear and prosecute his appeal, if he is the original defendant, the plaintiff shall-.have judgment final, by default, for the amount of the judgment of the justice against the appellant and his sureties for the debt and costs.”

It is insisted, inasmuch as it was not the fault of the plaintiff in error that the papers were not filed within the time required by law, it should have been permitted to prosecute its appeal, and that, taking these sections of'the Code together, it is evident the legislature intended the judgment of affirmance should follow a default in prosecuting an appeal after the papers were returned, and not the default of the justice in failing to return the papers in time. This contention is rested on Humphrey v. Humphrey, 1 Swan, 154. That case was decided in 1851, and it was there said that the later act was intended to modify the strictness of the earlier one, and thus relieve the appellant from the loss incident to the negligence of the magistrate, and mate him responsible only for his own laches; and it was also intimated, if not held, that the act of 1811 impliedly repealed so much of the act of 1809 as authorizes a judgment of af-firmance upon the failure of the magistrate to file the papers in time. It is evident, however, that it was not the understanding of the framers of the Code that there was an implied repeal of any part of the act of 1809 by the later statute, because they bring forward the provisions of both of these acts, and, with slight alteration, they constitute the sections of the Code already quoted. Upon an examination of these sections, we discover no inconsistency or contradiction in them. Each can be made effective without conflicting with any part of the other sections. Thus construed, they have this meaning. If the justice of the peace fail to perform his statutory duty, then, upon the production of the papers by the appellee, he is entitled to have his judgment of affirmance. If he fails, however, to produce the papers, but the justice of the peace does at any time during the term, then this judgment of affirmance cannot go, save upon the failure of the appellant thereafter to prosecute his appeal. In other words, two different contingencies are provided for: First a default upon the part of the magistrate, of which the appellee may take advantage if he sees proper; and, second, if the appellee fails to secure this advantage, and the papers are produced by the justice of the peace, his judgment then can only be affirmed upon the failure of the appellant to prosecute his appeal.

In other words, we think that after the papers have been produced by the appellee, with a motion for a judgment of affirmance because of the fault of the magistrate, this motion cannot be intercepted by a counter motion upon the part of the appellant to file the papers and prosecute his appeal, as provided for in section 4875. It is otherwise, however, where the papers are presented by the magistrate.

In addition, it is to be noted that the present case is distinguishable from the case in Swan in this: In that case the papers were produced in open court by the justice of the peace, when for the first time the appellee insisted upon an affirmance under the act of 1809, while in this the papers are produced by the appellee in strict accordance with the act. We .think in that case the motion to affirm came too late, while in the present the motion to prosecute the appeal.

This construction of these sections harmonizes with the system embracing appeals to the circuit court. In Hayes v. Kelley, 111 Tenn., 294, 76 S. W., 891, it was held that the provisions of the statute requiring that in certain cases, where an appeal has been prayed from the judgment of the county court to the circuit court, a transcript of the record shall be delivered to the clerk of the circuit court by the first day of the term to which tbe appeal is taken, and'that, if tbe transcript is not filed within tbe time so prescribed, tbe judgment of tbe county court shall be affirmed, are mandatory, and upon the failure to comply therewith it is imperative upon tbe circuit court to affirm tbe judgment appealed from. Tbe terms of tbe statute there called in question are not more mandatory than those used in section 4874. In both cases, we think, wherever tbe statutory default exists, that upon tbe production of tbe transcript in tbe one case, and tbe original papers in tbe other, tbe ap-pellee is entitled, as a matter of right, to bis judgment of affirmance.

Save for tbe imperative, terms of tbe section in question, we would have no doubt tbe plaintiff in error would have been entitled, upon tbe facts presented, in tbe affidavits of its counsel to prosecute its appeal in tbe present case with a view to having tbe cause disposed of upon its merits. In tbe face, however, of its provisions we do not think this could be accorded. Tbe judgment of tbe lower court is therefore affirmed.  