STATE v. CARRAWAY

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Docket Number

No. 29500.

Attorney(S)

E.R. Holmes, Assistant Attorney-General, for the state. The lower court by reason of its failure to administer to the jury the special oath required by section 1489, Mississippi Code of 1930, erred. Chapter 26, of the Code of 1930, sets out all the law of the State of Mississippi with regard to eminent domain. An eminent domain proceeding is a special and summary proceeding which is entirely governed by the statute creating a special court of eminent domain. Such statute must be strictly construed and closely followed. It is our contention that section 1497, Code of 1930, dealing with appeals from an eminent domain court and providing that "upon appeals, the issues shall be tried de novo in the circuit court, which shall try and dispose of it as other issues, and enter all proper judgments," is controlling here for the reason that the county court statute, although giving the county court exclusive jurisdiction of eminent domain, makes no provisions of any kind for procedure in cases of this kind. It is undoubtedly true that all actions begun in the county court are, on appeal to the circuit court, to be tried on the record, but we maintain that in this particular instance where the court is dealing with the property rights of a party, the statute which declares the procedure to be followed in the particular instance should govern rather than the general statute which applies to all cases generally. The entire Mississippi Code of 1930 must be read together and construed as a whole, and in reading it together, an attempt must be made to give each section some meaning. It appears, therefore, that in this particular instance the legislature said in effect that all appeals from the county court are to be tried in the circuit court on the record, but in eminent domain proceedings where the county judge is presiding over special court of eminent domain, the parties are entitled to a trial de novo in the circuit court, because of the peculiar summary nature of the suit. J.D. Carr, of Newton, for appellee. Appellant's first assignment of errors is without merit, for the reason that he is complaining about the action of the county court and he failed to assign it as error to the circuit court; and for the further reason that the action of the county court in using the panel of the week, from which the jury was selected, and which was accepted by appellant, was proper and legal, as provided by chapter 17, Code of 1930. Eaton v. Hattiesburg Auto Sales Co., 117 So. 534; Merrill Engineering Co. v. Bolton and Carr, 119 So. 354. Section 704, Code of 1930, govern all appeals from county courts to circuit court, the provision being that, "appeals shall be considered solely upon the record as made in the county court." Could language be plainer, more emphatic, or less doubtful of meaning? Appellant made his record in this case in the county court where he had all the rights, safeguards and privileges that he could have had in the circuit court.

Judges

Ethridge, P.J., delivered the opinion of the court.

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STATE v. CARRAWAY.

1. EMINENT DOMAIN. Trial on appeal from county court to circuit court in condemnation proceedings is not de novo, but on record and assignments of error ( Code 1930, sections 704, 1497).

An an appeal from the county court to the circuit court in an eminent domain proceeding, the trial is not de novo in the circuit court, but is upon record and assignments of error.

2. APPEAL AND ERROR. Points not raised by assignments of error in circuit court, other than as to jurisdiction, cannot be raised in Supreme Court on appeal ( Code 1930, section 704).

Points not raised by assignments of error in the circuit court other than as to jurisdiction cannot be raised on appeal from the circuit court to this court.

Ethridge, P.J., delivered the opinion of the court.

This is an appeal by the state of Mississippi, acting in behalf of the state highway commission, from a condemnation proceeding instituted in the county court of Newton county, and appealed to the circuit court. In the circuit court, the state moved for a trial de novo, which motion was overruled, and the state declined to plead further, and judgment was entered affirming the county court.

The main contention on the appeal has reference to whether a trial de novo should have been granted in the circuit court on appeal from the county court. By section 1497, Code of 1930, under the chapter on eminent domain, it is provided that on appeal to the circuit court a case shall be tried de novo. By section 704, Code of 1930, it is provided that appeals from the county court to the circuit court shall be on bill of exceptions and assignments of error, as was held in the case of City of Hattiesburg v. S.T. Pritchett (Miss.), 134 So. 140, decided May 4, 1931, in which case it was held that there should be no trial de novo in the circuit court. That case controls here. In the present case there were no assignments of error filed in the circuit court raising the other questions, and none can be noticed on the appeal here. This court only reviews matters presented to the court below.

The judgment of the circuit court will therefore be affirmed.

Affirmed.

STATE v. CARRAWAY.

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