Ex parte Neil

43 So. 615 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

The sole question of this case is this: Where a special term of the circuit court has been properly called, the proper notice of the time and place for holding the court has been given, and the order calling the special term has actually been made and actually filed with the circuit court, was the circuit court absolutely without jurisdiction to proceed at all, at said special term, merely because of'the clerical omission on the part of the circuit clerk to enter the order on the minutes of the court? Manifestly not. In this ease, out of which this habeas corpus grows, there clearly was jurisdiction to try the case so far as subject-matter was concerned, there was jurisdiction as to the parties (the state and the defendant), and the jurisdiction was exercisable and was exercised at the. time and place fixed in the order calling the special term, the order was made and was filed, and the only difficulty grows out of the simple fact that the clerk failed to enter the order on the minutes of the court. When every element of jurisdiction, as to subject-matter, parties, time, and place, is present, it is inconceivable how the jurisdiction of the court, in any proper legal definition of the' term “jurisdiction,” can be seriously questioned. If one convicted of murder and sentenced to be hanged prosecutes a direct appeal to this court, and asks a reversal because the minutes of the court failed to show that the court was organized at all, the law provides that the case shall not be reversed because of the omission of so important a thing as the declaration that the court was organized. Section 4936, Code 1906. Surely, if jurisdiction is not defeated by failure to show on the minutes that the court was organized at all, it cannot be defeated by the mere clerical failure to enter the order calling the special term on the minutes of the court. Notice as to when and where the court will be held is far more important to litigants than the entry on the minutes of the order calling a special term, and yet the statute expressly provides now (what this court held was the law before the statute) that the failure to give such notice did not oust jurisdiction. See Williams v. Cammack, 27 Miss., 209, 61 Am. Dec. 508; State v. Claude, 35 La. Ann., 71, and Mastronada v. State, 60 Miss., 86. We do not think there is any merit in the contention of appellant.

The judgment of the court below is affirmed.