Kennard v. State

• Decision Date: 06 March 1961
• Docket Number: No. 41793,41793
• Parties: Clyde KENNARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 848

127 So.2d 848

240 Miss. 488

Clyde KENNARD v. STATE of Mississippi.

No. 41793.

Supreme Court of Mississippi.

March 6, 1961.

R. Jess Brown, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

GILLESPIE, Justice.

On September 29, 1959, appellant was convicted in Justice of the Peace Court on two charges: Reckless driving and possession of intoxicating liquor. Subsequent proceedings in the two cases were identical and we consider the two cases as one.

On September 29, 1959, appellant filed an appeal bond returnable 'to the next term' of county court. When the next term of county court convened on October 12, 1959, an order for a writ of procedendo was entered directing the justice of the peace court to enforce the judgment. On the following morning, October 13, 1959, appellant filed his motion to set aside the order for writ of procedendo so that appellant could have a trial on the merits. The county court overruled the motion. Appellant appealed to circuit court where the county court's order was affirmed. Appellant then brought this appeal.

While not a decisive factor in the case, it should be stated that appellant and his attorney apparently understood the appeal was returnable to the November term of court.

The undisputed facts and the testimony of the circuit clerk and county attorney show the facts as next stated. Appellant read a newspaper article sometime during the week preceding October 12, 1959, indicating to him the case would come up during the October term of county court beginning October 12. He then went to the circuit clerk (who is also clerk of the county court) and inquired of the clerk when his case would be tried. The clerk told appellant he did not know the date of trial but that the docket would be set at 10 o'clock Monday morning (October 12, 1959). According to the testimony of the county attorney, who prosecutes for the county and has control of the criminal docket of the court for the prosecution, appellant came to his office a few minutes before 10 o'clock on Monday, October 12, 1959, and the county attorney testified as follows: 'Then he ask me when his case would be tried. I told him I did not know exactly, that I thought the judge, or understood the judge, would have a jury next week, that it would be set though, yesterday (the testimony was being given the following day, October 13, 1959), and then he (appellant) said, 'Would I be notified,' and I told him, no, you will not be notified, but, whatever date your case should be set on, the clerk will mail a copy of the docket to your attorney, if you have an attorney of record.' The county attorney testified that appellant then said, 'Well, then, my attorney will be notified.' The county attorney then replied, '* * * that was the general practice, and that we are going to call the docket in a few minutes over there, and you go over there and sit in the courtroom and when your case is called, it will be set and then you will know yourself what date it will be on.' Appellant then went to the circuit court room on the second floor of the courthouse and no one was there. Since he understood his attorney, who lived in another county, would be notified of the date of the trial, appellant left. The county court convened in the basement, and, as already stated, the writ of precedendo was ordered when the docket was called. The name of appellant's attorney did not appear on the county court docket.

The question in this case is whether the trial judge abused his discretion in refusing to set aside the writ of procedendo so that appellant could have a trial on the merits. The effect of the order for the writ of procedendo was to dismiss the appeal or enter a judgment by default. A number of cases has been decided involving the same question in civil cases. We should consider those cases because the rule in criminal 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 good and sufficient; that mere inattention and forgetfulness cannot be a valid excuse for a failure to discharge a legal duty. This may be true when such inattention or forgetfulness has occasioned a failure which has been injurious to the adverse party, or the action of that party, based on such failure and caused by it, cannot be reversed without injury to him. But when the neglect is in the mere conduct of a suit, and its consequences do not operate injuriously, its condonation by the judge can do no harm except to deprive the adverse party of an advantage which he has secured in virtue of such neglect, and in that case the party guilty of the neglect should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of justice, not shackles to bind courts to the perpetration of wrong. When their non-observance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause, the fault should be corrected. * * *' In Tonkel v. Williams, 146 Miss. 842, 112 So. 368, this Court said that where no possible harm could come to plaintiff by having a trial on the merits, the court should not summarily...