Ex parte Grubbs

80 Miss. 288

• Court: Mississippi Supreme Court
• Decided: March 15, 1902
• Status: Published

Opinion

Oaxi-ioon, J.,

delivered the opinion of the court.

Mr. Grubbs was convicted of a criminal offense by a justice of the peace. lie took his appeal to the circuit court, but not until after the lapse of several months, and after two terms of that court had intervened. In the meantime he was on the county farm, serving a sentence as a convict. Seven months after his conviction he obtained a writ of certiorari to the justice of the peace to appear with the record and papers. The justice appeared, and said he could not bring the papers, because they were lost; but, curiously enough, he makes no excuse for bringing the record, which would have been a basis for supplying the lost papers. The circuit court dismissed the petition for the writ of certiorari on the ground that Grubbs was barred of his appeal because he did not appeal to the term of that court next following his conviction. We do not concur in this view. The limitation on appeals in civil cases provided for in code, §§ 82, 84, do not apply to criminal cases. These are governed by § 86, and the requirement of this that bond be required for appearance “at the next term of the.circuit court” means, we deduce from the whole context, the next term after appeal taken. Smith v. Boykin, 61 Miss., 110. But nevertheless the court was right in dismissing’ the petition for the writ of certiorari, since § 89 barred that, because more than six months had elapsed from the day of decision.

Mandamus is the only remedy left to Mr. Grubbs, and the justice may thus be compelled to bring any papers, and at least a transcript of his docket record, from which papers may be prepared and substituted for those lost.

Affirmed.