Robertson v. Mhoon
| Decision Date | 18 May 1891 |
| Citation | 9 So. 887,68 Miss. 712 |
| Court | Mississippi Supreme Court |
| Parties | O. K. ROBINSON v. OSCAR MHOON |
FROM the circuit court of Tunica county, HON. R. W. WILLIAMSON Judge.
Appellant was plaintiff in a suit in the justice court, and, desiring to appeal from an adverse judgment, tendered to the justice of the peace, within five days, an appeal bond signed by himself and two sureties. The justice took the bond, saying he would examine it and if found correct would approve it. He declined to approve it, and entered a minute on his docket that he refused it because insufficient. After the expiration of the five days the justice, for the first time, told plaintiff's agent of his disapproval of the bond, at the same time saying it was satisfactory to him but not to the defendant's counsel.
Appellant thereupon filed his petition in the circuit court stating the above facts, and that the sureties were solvent, and praying for a writ of certiorari directed to the justice of the peace requiring him to produce all the papers in the cause and for a supersedeas and reversal of the judgment, and that the cause be tried anew on its merits.
The writ was issued by the circuit court, but it does not appear in the record that it was served upon the justice of the peace, or that the record in the cause before him was produced in compliance with it.
At the ensuing term of the circuit court appellant made a motion to have his appeal bond approved and the cause docketed for trial, and evidence was introduced establishing the allegations of the petition as above set out.
The motion was overruled and plaintiff appealed.
Reversed and remanded.
Morgan & Buchanan, for appellant.
If an opportunity to appeal has been lost by the neglect of an officer of the law, contrivance of the opposite party, or improper conduct of the inferior court, a certiorari will be granted without reference to the merits. Collins v Nall, 3 Dev. 224; McMurray v. Milan, 2 Swan, 176; 3 Hay 219; 4 Tenn. 69; 10 Yerg. 254.
No counsel for appellee.
Argued orally by J. B. Morgan, for appellant.
In acting upon appellant's motion to approve his appeal bond, docket the cause and proceed to trial, we are of opinion that the court below should not have denied the same wholly, because in the then condition of the case, it was impossible to grant the entire prayer of the motion. With the petition for certiorari, and its very full...
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