Durden v. State

59 So. 844, 102 Miss. 570

• Court: Mississippi Supreme Court
• Decided: October 15, 1912
• Status: Published

Opinion

Need, J.,

delivered the opinion of the court.

The appellant was convicted in a justice of the peace court of the unlawful sale of intoxicating liquor. He appealed to the circuit court, but he was not present when his case was called on the docket, and made no answer in person or by attorney. The court dismissed his appeal, and ordered that a writ of procedendo issue. The appellant, by attorney, moved the court to set aside the order of dismissal, and with, the motion filed an affidavit,, in which he stated that he had no knowledge of the requirements of the law relative to his attendance upon court, and that his absence was due to his ignorance in such matters. lie claimed to have been in another part, of the court house, and also that his case “was sounded on the docket and was not called for trial.”

The appeal bond executed by the appellant required him to appear at the next term of the circuit court, and from day to day and term to term, until discharged by law. The case was on the circuit court docket for trial. "When-it was called, and the appellant failed to appear and answer the charge against him, as required by law, the court had the right to dismiss the appeal, and take all other necessary action in the case. There is no fixed rule governing the matter of reinstating a case, where dismissal has been ordered because of the failure of appellant to appear and answer the charge against him, as required in his appeal bond. Each case arising must be addressed to the sound judgment of the trial judge, in the exercise of his discretion.

From all appearing in the record in the instant case, it cannot be said that the judge of the court abused proper discretion. It is certainly the purpose of the law that every person charged with a violation of the criminal law should be present in court, ready to personally respond whenever his case is called for hearing.

Affirmed.