Ex parte Neil

• Decision Date: 06 May 1907
• Docket Number: 12,808
• Court: Mississippi Supreme Court
• Parties: EX PARTE CLAUDE NEIL

43 So. 615

90 Miss. 518

EX PARTE CLAUDE NEIL

No. 12,808

Supreme Court of Mississippi

May 6, 1907

FROM the chancery court of, second district, Jones county, HON JAMES L. MCCASKILL, Chancellor.

Neil the appellant, applied to the chancellor for a writ of habeas corpus; the writ was, on the hearing, denied, and the relator remanded to custody; from which judgment he appealed to the supreme court.

Appellant was indicted, tried and convicted of a misdemeanor at a special term of the circuit court of, second district, Jones county held on the third Monday of March, 1907, and sentenced to pay a fine of $ 300 and to be imprisoned as a county convict for ninety days on the county farm. Having been placed in custody under such judgment, appellant sued out a writ of habeas corpus on the ground that he was illegally deprived of his liberty in that the court in which he was convicted was not a legal tribunal, since there was no entry apparent upon the minutes of the circuit court showing any order of the judge of the court calling a special term of court to convene on the third Monday of March, 1907.

The application of appellant for habeas corpus was heard before the chancellor on an agreed statement of facts, which showed that the organization and conduct of the court were in all things regular and in conformity with law, but that the order of the court calling the special term, though duly made and published as required bye the statute, Code 1906, § 988 was not entered upon the minutes. The court denied the relator's application; hence this appeal.

Judgment affirmed.

C. R Gavin, Stone Deavours, and R. E. Halsell, for appellant.

The question for decision before this court is, whether a proceeding had at a special term of court is valid, when the authority for holding the special term does not appear of record upon the minutes of the court.

By the legislative act of 1906, ch. 169, sec. 1, it is provided that the regular term of the circuit court of the second judicial district of Jones county shall be held in the city of Laurel on the first Monday of May and of November. It is therefore evident that the appellant, the relator below, was not indicted, tried and sentenced by a court held at the regular time fixed by law for holding a term. Hence the appellant is not now held by virtue of any proceeding had at a regular term of court, but is, instead, in custody by virtue of a proceeding had at an alleged special term of the circuit court held in Laurel.

Code 1906, § 988, regulates the holding of special terms of court, and, in substance, recites that "when the business of a circuit or chancery court may require, the judge or chancellor, in term time or vacation, may order a special term to be held, and the order shall be entered on the minutes; or, if made in vacation, on the minutes of the special term."

We contend that the order calling a special term must appear upon the minutes or the proceedings at that term will be void. 11 Cyc., 730; Grant v. State, 62 Ala. 233; 21 Ency. Pl. & Pr., 620; Daughdrill v. State, 113 Ala. 7; Dixon v. State, 29 Ark. 165; Spring v. Kane, 86 Ill. 580; Huber v. Armstrong, 7 Bush. (Ky.), 590; Harmon v. Copenhaven, 89 Va. 836; State v. Stanley, 38 W.Va. 517.

The statute for the calling of special terms of the circuit court in Mississippi, is mandatory and must be strictly construed. In support of this proposition we quote from Sutherland on Construction of Statutes: "Mandatory statutes are imperative. They must be strictly pursued, otherwise the proceeding which is taken ostensibly by virtue thereof will be void. Compliance substantially therewith is a condition precedent, that is, the validity of acts done under mandatory statutes depends on a compliance with its requirements. When a statute is passed authorizing a proceeding the mode of which an act shall be done, the mode pointed out must be strictly pursued." This proposition laid down by Sutherland is borne out by the following authorities: Dolton v. Murphey, 30 Miss. 59; Coffman v. Daveny, 2 Haward, 854, Miss.; Koch v. Bridges, 45 Miss. 247; Shelly v. Bacon, 10 Howard (U.S.), 56.

The court's attention is especially called to the case of Koch v. Bridges, supra, which, we contend, settles the question in this case; as the only hope for the appellee is that the clause requiring the order to be entered on the minutes be construed to be directory and not mandatory. In construing a similar statute the court said, in the case cited, on page 255 that, "this mode of getting rid of a statutory provision by calling it directory is not only unsatisfactory on account of the vagueness of the rule itself, but it is the exercise of a dispensing power by the courts, which approaches so near legislative discretion that it ought to be resorted to with reluctance."

R. V. Fletcher, assistant attorney-general, for appellee.

There is nothing inherent in the nature of a special term of court which requires the order, calling such special term, to be spread upon the minutes. Were the statute silent as to this requirement, it would hardly be contended that all the acts of the court were illegal merely because the order was not upon the minutes. Friar v. State, 3 How. (Miss.), 422.

The whole argument of appellant depends upon the recital in the statute, Code 1906, § 988, that the order shall be spread upon the minutes. Yet, at the time the case of Friar v. State, supra, was decided, the provision requiring notice was just as emphatic and mandatory as is now the provision in the Code of 1906 requiring entry of the order upon the minutes. In the case cited it was expressly held that the notice of the time of holding the special term is not necessary to confer jurisdiction, and that such a provision is merely directory. See also Mastronada v. State, 60 Miss. 86.

It is contrary to our whole theory of law to hold that, where a court has been properly called, and parties have without objection submitted themselves to the court's jurisdiction, all of the acts of the court shall be considered void, and void merely because of a clerical omission. Certainly it would have been permissible at any time during the term to supply such omission by an order nunc pro tunc. Indeed, a nunc pro tunc order can be entered to correct a clerical omission even after the adjournment of the term. Graves v. Fulton, 7 How. (Miss.), 592; Stokes v. Shannon, 55 Miss. 583.

The modern law on this subject has been thus stated "Accordingly the rule now very generally obtains that a court may amend its record with respect to clerical errors and misprisions as...