Lunenberger v. State

74 Miss. 379

• Court: Mississippi Supreme Court
• Decided: October 15, 1896
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

The motion of the defendant to be discharged, because of the failure of the justice of the peace to perform the mere clerical act of entering up the judgment actually rendered for two days, was properly overruled. The entry of the judgment which had been rendered was merely clerical, and, in this case, it is undisputed that the judgment was really rendered, and that a proper notation of the justice’s action was then made in writing, and was transcribed in the docket two days later. See Conwell v. Kuykendall, 29 Kan., 707; Freeman on Judgments, sec. 53a, and cases there cited; 12 Am. & Eng. Enc. L., 459, and cases cited.

But the point seems to be definitely settled in this state in the case of Swain v. Gilder, 61 Miss., 667. Said Cooper, J., speaking for the court: “Judgments taken before justices of the peace are liberally construed by the courts, because of the unlearned character of the men by whom the office of justice is frequently filled, and because the justice, in .entering the judgment, is performing a merely clerical duty. ... If, all the facts being found, nothing was left but the clerical duty of entering up a final judgment, which it was the duty of the justice to perform in his clerical capacity, and the justice ignorantly failed to enter such judgment, but dealt with the record as completed, then the judgment, however irregular, informal, or defective, will be upheld.”

The evidence of the witnesses, Coney and Salford, was competent. The evidence of these witnessess was not offered to show other and independent sales than that particular one for which the state prosecuted, but the purpose was merely to prove the intoxicating quality of the beverage sold, and this was legitimate.

Affirmed.