Barber v. City of Biloxi

• Decision Date: 13 March 1899
• Citation: 76 Miss. 578,25 So. 298
• Court: Mississippi Supreme Court
• Parties: EVON M. BARBER v. CITY OF BILOXI

25 So. 298

76 Miss. 578

EVON M. BARBER v. CITY OF BILOXI

Supreme Court of Mississippi

March 13, 1899

November 1898

FROM the circuit court of Harrison county, HON. T. A. WOOD, Judge.

The opinion states the case.

Judgment reversed.

A. Y Harper and E. M. Barber, for the appellant.

1. Had the defendant appeared for trial there would have been no breach of the bond, and the same result attends a trial in his absence when the state waives his appearance.

2. The court below lost control of its judgment when the term ended and could add nothing thereto at a subsequent term.

White & Neville, for the appellee.

The judgment of the court below is correct. Code 1892, §§ 86, 946. The waiver of the presence of the defendant did not forfeit any right appellee had under the bond, nor give immunity to the appellant.

OPINION

TERRAL, J.

Before Hon. T. H. Gleason, police justice of the city of Biloxi, on June 18, 1896, John W. F. Livings was tried and convicted of violating ordinance No. 81 of said city, forbidding, between daylight and 9 o'clock A.M. of each day, the carrying on of a market for the sale of fresh meats at any place within said city other than the public market of said city of Biloxi, and was fined therefor fifty dollars. The defendant, believing ordinance 81, restricting the sale of fresh meats within the city of Biloxi to one place, when Biloxi was confessedly a city three and one-half miles wide, with a permanent population of five thousand people, and increased in the summer months by from five thousand to eight thousand visitors, was invalid on the rule of Lord Coke, that whatever was inconvenient was against law, and being supported in such view by counsel, he suffered himself to be placed in the city prison in order to seek liberation through the medium of a writ of habeas corpus; but failing therein, with a view of reaching the supreme court in the best possible shape, he appealed to the circuit court, and, thereupon, with E. M. Barber and W. H. Maybin as sureties, gave bond for such appeal, which bond was conditioned "to pay the city of Biloxi $ 100 unless (he) said Livings should appear at the next term of the circuit court of Harrison county to answer the city of Biloxi upon a charge of the violation of ordinance No. 81."

At the November term, 1896, of the circuit court of Harrison county, the charge was tried by the court, a jury being waived, and the presence of the defendant being also waived, as appears by the record of the case, when a verdict of guilty was given against the defendant, and he was adjudged to pay a fine of twenty-five dollars, and to be imprisoned upon arrest until said fine and all costs amounting in the aggregate to $ 94.50, should be paid, for which a capias pro fine was ordered. Process having been issued upon the judgment of the circuit court, the fear of Livings got the better of his judgment, and, notwithstanding the alleged invalidity of the proceedings, he fled the jurisdiction of the court, and neither the body nor the goods of the defendant could be found by the sheriff of which to satisfy said judgment. Whereupon, at the May term, 1897, of the circuit court of Harrison county the attorneys of said city insisted upon and obtained a judgment nisi...