Gortney v. City of New Albany
| Decision Date | 04 February 1935 |
| Docket Number | 31583 |
| Court | Mississippi Supreme Court |
| Parties | GORTNEY v. CITY OF NEW ALBANY |
APPEAL from the circuit court of Union county HON. T. S. PEGRAM Judge.
C. R Gortney was convicted of an offense in the municipal court of the city of New Albany and appealed to the circuit court. From an order dismissing his appeal and directing the issuance of a writ of procedendo to the lower court, he appeals. Reversed and remanded.
Reversed and remanded.
J. W. P. Boggan, of Tupelo, for appellant.
This case should not have been docketed for the special term of court and doubtless the circuit judge was not advised of the date for the appearance of the appellant mentioned in the bond.
This court has held in several civil cases that a case that was not triable at the preceding term cannot be tried at a special term of court.
Commercial v. Galloway, 6 How. 515; Hatto v. Brooks, 33 Miss. 575; 3 American & English Encyclopedia of Law (2 Ed.), vol. 3, page 693 (b); State v. Allen, 33 Ala. 422; Wheeler v. State, 21 Ga. 153; Sheets v. People, 63 Ill. 78; Mooney v. People, 81 Ill. 134; State v. Aubrey, 43 La. Ann. 188; Hodges v. State, 20 Tex. 493; 3 Encyc. Pleading & Practice, page 219; Butler v. State, 12 Smed. & M. (Miss.); 6 C. J. 905, sec. 38 (4).
Appellant was convicted in the municipal court of the city of New Albany on the 30th day of August, 1934, and on the same day he perfected an appeal to the next term of the circuit court by filing a proper bond conditioned to require his appearance at the next term of the circuit court of Union county, to be held on the fourth Monday of January, 1935. On October 3, 1934, in pursuance of a proper order of the circuit judge, a special term of the circuit court of Union county was convened, and on that day, upon the failure of the appellant to appear, an order was entered dismissing his appeal and directing the issuance of a writ of procedendo to the lower court; and from this judgment an appeal to this court was prosecuted.
The appellant's contention here is that, since his appeal bond was returnable to the next regular term of the circuit court to be held on the fourth Monday of January, 1935, and was conditioned for his appearance at that term, the cause was not triable at a special term convened before that date, and that, consequently, the court was without authority to dismiss the appeal at such special term.
It has been frequently held by this court that a civil case is not triable at a special term of the court, unless it was triable at the preceding regular term. Commercial Bank v. Galloway, 6 How. 515; Hatto v. Brooks, 33 Miss. 575; Williams Bros. v. Bank, 132 Miss. 178, 95 So. 843. But we know of no case which has expressly decided the point in reference to criminal appeals from the court of a justice of the peace.
Section 68, Code 1930, provides that appeals from a conviction of a criminal offense in a justice or police court may be taken by the execution...
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Wilcher v. State
...statutory authority to try this case at a special term. Miss.Code Ann. Sec. 9-1-1. Defense counsel's citation of Gortney v. City of New Albany, 171 Miss. 896, 158 So. 921 (1935), is misplaced, where an entirely different question was presented to this In our modern day, with the added rules......
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Kennard v. State
...matters is no harsher than in civil cases. Cf. National Casualty Company v. Calhoun, 219 Miss. 9, 67 So.2d 908; Gortney v. City of New Albany, 171 Miss. 896, 158 So. 921. This Court said in the early case of Yost v. Alderson, 58 Miss. 40, that, 'It is argued that the cause shown was not goo......
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