Opinion
No. 33592.
February 27, 1939.
1. CRIMINAL LAW.
Where, after Supreme Court's affirmance of judgment of circuit court dismissing defendant's appeal from conviction in mayor's court for selling beer to a minor and granting writ of procedendo to mayor's court unless defendant should perfect record of certificate from mayor's court, circuit court denied motion for writ of certiorari commanding mayor to bring into circuit court his mayor's docket and papers filed in case and to perfect appeal from mayor's court, judgment denying motion was reversed and remanded for trial in order that circuit court might issue proper process to require record from mayor's court to be correctly transcribed and duly certified to (Code 1930, section 65).
2. CRIMINAL LAW.
A justice of peace from whose court case has been appealed has duty to transmit to clerk of circuit court certified copy of record of proceedings with all original papers and proceedings in the case and original appeal bond.
3. CRIMINAL LAW.
On failure of justice of peace, from whose court appeal has been taken, to transmit to clerk of circuit court certified copy of record of proceedings with all original papers and proceedings in the case and original appeal bond, circuit court has authority to issue necessary process to enforce its performance.
4. COURTS.
The circuit court by virtue of its inherent powers as an appellate tribunal in proper cases should exercise its authority to restrain inferior tribunal and constrain it, to yield obedience to lawful requirements.
APPEAL from the circuit court of Wilkinson county; HON. R.E. BENNETT, Judge.
W.F. Tucker, of Woodville, for appellant.
The appellant had issued some sort of a writ making an honest effort to comply with the judgments of both the Circuit and the Supreme Courts, but when the case came up at the October Term, 1938, of the Circuit Court, then held that the appellant should have filed the writ of certiorari within six months from the decision of the circuit court in October 1937, before the mandate of the Supreme Court was received, and it was now too late to have the mayor perfect the record by any writ or by any order of court.
Section 72, Code of 1930, provides that cases decided by a justice of the peace may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, but that court in causes so removed shall be confined to questions of law arising or appearing on the face of the records and proceedings.
There was no need of a petition and affidavit here, there was just an order of the circuit court appealed to the Supreme Court and there affirmed, and that order and the mandate of the Supreme Court was all necessary to perfect the appeal from the mayor's court to the circuit court. There were no questions of law here, all such questions had been removed by both the circuit court and the Supreme Court had ordered a writ of procedendo, unless the appellant perfected his appeal, and the writ of certiorari would not lie to so perfect the appeal.
Redus v. Gamble, 85 Miss. 165.
There was and is no defect in the record in the instant case, both the circuit court and the Supreme Court admitted the certificate and the record of the mayor were defective by ordering the appellant to perfect same. The poor appellant was doing the best he could by a writ of duces tecum wherein he set out the order of the Circuit Court and the mandate of the Supreme Court, and the matters to be perfected and the papers to file in the approaching term of circuit court. What else could the appellant do, he had no right to demand the possession of the mayor's records, he had no right to go into the mayor's office and make a transcript and to deliver the same to the clerk of the circuit court. When at the October, 1938, term of the circuit court the appellant's writ of duces tecum was declared to be a nullity, when he was denied an order to force the mayor to file the proper papers in court to perfect the record, when he was denied a trial on the merits of the case upon the record as then in court, and when he was told that his remedy was by writ of certiorari, but even that remedy was now too late; there was nothing to do but appeal again to this court for a right of trial.
We submit that this case should be reversed and remanded with instructions to the circuit court to accept the subpoena duces tecum and to order the mayor of the Town of Centreville to send up to the circuit court the perfected appeal or allow the appellant to go to trial on the merits of the case on the record now filed in court.
C.T. Gordon, of Liberty, for appellee.
When this cause was first appealed from the Mayor's Court to the Circuit Court of Wilkinson County the record was not complete and the defendant instead of following Section 72 of the Code of Mississippi 1930 by application for a writ of certiorari, filed his motion to dismiss the appeal and discharge the defendant. When the court overruled this motion, it informed the appellant that he must take his course at law to perfect the appeal. This appellant did not do, but appealed the matter to the Supreme Court of Mississippi where the action of the circuit judge was affirmed.
The appellant had six months under Section 72 of the Code of 1930 from the time that the appeal was taken in which to file his petition supported by affidavit to secure the writ of certiorari and he did not then, or at any time within the six months, file such petition, supported by affidavits. There was no authority for the issuance of the instrument, or writ, of the date of May 4, 1938. Six months time had transpired then and the appellant being guilty of laches and not exercising due diligence he was not entitled to his appeal. If he had been entitled to his appeal on May 4, 1938, and to have his record perfected by certiorari he did not file his petition supported by affidavit as required by law so as to support the issuance of the writ as to May 4, 1938.
The appellant has at no time since he undertook to take an appeal in this cause, complied with the law, and he did not on October 4, 1938, file his petition supported by affidavit as required by Section 72 of the Code 1930. The learned circuit judge was correct in overruling his motion.
It would appear to us that this appeal should be dismissed, or the action of the circuit court affirmed, that the proper writ of procedendo should issue as hereinbefore ordered both in the circuit court and in the Supreme Court, that the judgments of the court might be upheld and the law enforced.
On the 14th day of March, 1938, this Court affirmed, per curiam, a judgment of the Circuit Court of Wilkinson County dismissing the appeal of the appellant and granting a writ of procedendo to the Mayor's Court of the Town of Centreville, Mississippi, and which judgment of the circuit court ordered that the writ of procedendo be issued, "unless appellant shall perfect the record of the certificate from the mayor's court." The appellant had been convicted of selling beer to a minor and sentenced to pay a fine of $50 and to serve thirty days in jail, and which jail sentence had been suspended on good behavior.
After the cause had been affirmed on appeal and the mandate of this Court had been issued ordering that "such execution and further proceeding be had in said cause, as according to right and justice, and the judgment of the Supreme Court and the law of the land ought to be had," the appellant appeared at the next term of the Circuit Court, announced ready for trial, made a motion to reinstate the case, and for a writ of certiorari commanding the Mayor of the Town of Centreville to bring into the circuit court his mayor's docket and papers filed in the case, and to perfect the appeal from the said mayor's court. In support of the motion, he introduced the former judgment of the circuit court, the mandate of the Supreme Court, and also a process, referred to as a subpoena duces tecum, which he had caused to be issued by the circuit clerk in vacation, without an order of the circuit court therefor, and which process commanded the mayor to file with the clerk of the circuit court on or before the 1st day of the succeeding term a copy of the record of the proceedings had before the mayor and to transmit to the circuit clerk the original bond taken by him in the case, together with the judgment rendered and all of the original papers; and also to certify his transcript as required by Section 65 of the Code of 1930. This process was ignored by the mayor, and the motion for the writ of certiorari was denied by the circuit court on the ground that the writ was not applied for within the six months allowed by law.
It is the contention of the appellant that in view of the fact that on certiorari the circuit court could consider only such errors of law as appeared on the face of the record in the mayor's court, he was entitled to have the circuit court require the mayor by proper process to perfect and certify the transcript on the appeal from the mayor's court to the circuit court; and that he had made diligent effort to get the record transmitted and properly certified to in order to get a trial of his case in the circuit court on the merits.
This appeal is from the last order of the circuit court overruling the motion to reinstate the cause and in declining to issue the writ of certiorari. No final and unconditional judgment appears to have been rendered dismissing the appeal and granting a writ of procedendo to the mayor's court, subsequent to the affirmance of the former judgment of the circuit court which provided for the dismissal of the appeal "unless appellant shall perfect the record of the certificate from the mayor's court." The question therefore arises as to whether the case is still pending in the circuit court and undisposed of by any final judgment from which this appeal could be taken. However, the fact remains that the appellant has never been able to get a trial of the cause in the circuit court on its merits. Therefore we have concluded to reverse and remand the case for trial in order that the circuit court may issue the proper process to require the record from the mayor's court to be correctly transcribed and duly certified to. It was held in the case of Redus v. Gamble, 85 Miss. 165, 37 So. 1010, that it was the duty of a justice of the peace from whose court the case had been appealed to transmit to the clerk of the circuit court a certified copy of the record of the proceedings, with all of the original papers and proceedings in the case and the original appeal bond given by the appellant; and, that upon failure to discharge this legal duty it was competent for the circuit court to issue the necessary process to enforce its performance. Likewise, in the case of Robinson v. Mhoon, 68 Miss. 712, 9 So. 887, it was said that: "The misconduct of officials should not be permitted to defeat litigants of clear rights accorded them by law; and the circuit court, by virtue of its inherent powers as an appellate tribunal, in proper cases, should exercise its authority in restraining the inferior tribunal, and constraining it to yield obedience to lawful requirement." This being the rule in civil cases, the reason therefor should undoubtedly apply in criminal cases.
The cause will therefore be reversed and remanded in order that appellant's right to a trial de novo may be given him in accordance with these views.
Reversed and remanded.