POOL v. STATE

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Docket Number

No. 32111.

Attorney(S)

D.W. Holmes and Hearst, Pittman Pittman, all of Hattiesburg, for appellant. It was error for the circuit court to dismiss the appellant's appeal from the justice court. The order does not show that the appellant was called and given any opportunity to defend his case. In fact the order does not show on what ground, or for what reason, the appeal was dismissed with a writ of procedendo. Before the court would have authority to dismiss his appeal the record must show that the case was called for trial, and that the defendant was called, none of which the record shows was done. This order dismissing the appeal with a writ of procedendo is void on the face of it. Wilson v. Town of Handsboro, 96 Miss. 376, 50 So. 982; Ingram v. State, 136 Miss. 291, 101 So. 380. The circuit court was without authority to dismiss the appellant's appeal with a writ of procedendo, and it was reversible error for the court to do so. It is true that there appears on page 11 of the record an order of forfeiture on the appellant's appearance bond, which indicates that the appellant was at that time called but did not appear. However, this order does not help the case, because the record shows that it is a different order, and does not show anywhere that it was taken, even on the same day that the appeal was dismissed with a writ of procedendo. In other words, so far as the record shows, the order of forfeiture may have been taken on an entirely different day from the day that the appeal was dismissed. It may be, so far as disclosed by this record, that the appellant was present in court when the appeal was dismissed. Indeed, so far as the record discloses, we believe we have a right to assume that the forfeiture was taken on his bond at a different time from the time when his appeal was dismissed. Webb M. Mize, Assistant Attorney-General, for the state. It has been the law of this state for a long time that where defendant appeals from a judgment of the justice court to the circuit court and fails to appear and prosecute his appeal, it is proper for the circuit court to dismiss the appeal with a writ of procedendo. Bush v. State, 6 So. 647; Henderson v. State, 8 So. 649; Henning v. Greenville, 69 Miss. 214, 12 So. 559; Durden v. State, 102 Miss. 570, 59 So. 844; White v. State, 89 Miss. 675, 42 So. 164. It is elemental law that a defendant cannot avail of his own negligence and an attorney's negligence, if any, is conclusive on the ground in the absence of strong showing of fraud. Britton v. Beltzhoover, 147 Miss. 737, 113 So. 346; McCord v. Harrison and Stringer, 93 So. 428, 207 Ala. 480; Streety v. John Deere Plow Co., 109 So. 632, 92 Fla. 210.

Judges

Cook, J., delivered the opinion of the court.

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POOL v. STATE.

1. CRIMINAL LAW.

Court has no power to dismiss an appeal and order a writ of procedendo to issue until appellant is called and given an opportunity to defend.

2. CRIMINAL LAW.

Circuit court's judgment of dismissal of appeal from justice court's judgment finding defendant guilty of grand larceny, merely reciting that appeal was dismissed with writ of procedendo to court below to enforce its judgment, held not authorized in absence of showing that defendant was called and given opportunity to prosecute appeal and present defense before dismissal.

3. CRIMINAL LAW.

As respects propriety of circuit court's judgment dismissing appeal from justice court's judgment reciting merely that appeal was dismissed with writ of procedendo to court below to enforce its judgment, showing, in separate order, that appeal bond was at some time forfeited and judgment nisi entered against defendant and sureties on appeal bond held insufficient to show that defendant was called and given opportunity to defend before dismissal.

Cook, J., delivered the opinion of the court.

Appellant, Jim Pool, was tried in a justice of the peace court on a charge of grand larceny, and a judgment was entered finding him guilty, as charged, and sentencing him to pay a fine of fifty dollars and serve ninety days in jail, from which judgment he prosecuted an appeal to the circuit court. At a later term of the circuit court his appeal was dismissed with a writ of procedendo, the judgment of dismissal merely reciting that, "The appeal herein is dismissed with a writ of procedendo to the court below to enforce its judgment," and taxing the appellant with the costs of the appeal.

This judgment does not show that the appellant was called in the circuit court and given opportunity to prosecute his appeal and present his defense before the appeal was dismissed. It is well settled that, before a court has power to dismiss an appeal and order a writ of procedendo to issue, it is necessary that the appellant be called and given an opportunity to defend. Wilson v. Town of Handsboro, 96 Miss. 376, 50 So. 982; Peacock v. State (Miss.), 95 So. 647; Ingram v. State, 136 Miss. 291, 101 So. 380.

It is true that the record shows, in a separate order, that the appeal bond was, at some time, forfeited and a judgment nisi entered against the appellant and the sureties on his appeal bond, but that is not a sufficient showing that the appellant was called and given opportunity to defend before the dismissal of the appeal. As to the validity of the judgment entered in the justice of the peace court, we express no opinion.

The judgment of the court below overruling the motion to set aside the order of dismissal and reinstate the cause is therefore reversed, and the cause remanded.

Reversed and remanded.

POOL v. STATE.

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