73 Miss. 780 | Miss. | 1896
delivered the opinion of the court.
If all the evidence sought to be introduced in support of the motion in arrest of judgment had been admitted, the judgment of the learned court below on the motion must have been precisely that which was rendered.
Under our system of laws, there is a court provided for, a tribunal in which law is judicially administered; there is created an official called a judge, who presides in such court, and there is a term, or fixed period of time, in which the court shall be held. The court is one thing, the judge another thing, and the term a third thing. The court may convene and adjourn, from day to day, in the absence of a judge, though no judicial proceedings may be had without a presiding officer — a judge. The court does not perish because the judge may not be present each and every day. Our statutes abound in provisions intended to provide against such discontinuance of the court. So, also, our statutes provide against any discontinuance of a term — the fixed time in which a court must be held — because of the temporary absence of the presiding officer of the court.
Section 914, code of 1892 (which, in substance, may be traced in our legislation for more than seventy years), has a twofold purpose. The first is designed to prevent the discontinuance of suits where terms of court are not held, or where the court does not sit the whole term, or during the term does not hear all causes standing for trial, and no formal entry of continuance is made in such cases, as was formally the absurd requirement of practice in order to prevent such discontinuance; and the second purpose is to prevent the equally absurd discontinuance of a term of court because it does not actually sit for the transaction of business on any day of the term after it has commenced. The language of the second member of the section is in these words, and is free from all ambiguity, viz.: “And if the court shall not sit [from, cmy oatose may be read in, as is actually provided, in those very words, in Laws of 1822, p. 25] on any day of the term, there shall not be any discontinuance,
Plainly this statute prevents a discontinuance of a term of court after the term has been commenced, because of a failure to sit of the court from any cause for any day of the term thus once begun. The illness of the judge for a day; the death or resignation of the judge and a vacancy in that office for a day; or the expiration of the term of office of the judge who began to preside over the court, and the intervention of a day before his successor qualifies and appears in court, shall not work a discontinuance of the term. There might arise an extraordinary conjuncture of circumstances which, ex necessitate, would operate to discontinue a term. But there was no. such conjuncture offered to be shown in the case before us. .Here the term of office of the judge who began the term of the court, expired on January 21. On the evening of that day the court was regularly adjourned to the following day. No judge appearing in court the next day, the court was properly adjourned again by the sheriff until the next succeeding day, January 23, on which day the newly qualified judge appeared and took up the burdens laid down by his predecessor on the twenty-first. There was simply the absence of a judge competent to preside and continue the court for one day, but, unless we are to do violence to the letter and spirit of our statute, there was no cessation of the court and no discontinuance of the term. The statute was designed to prevent the inconvenience and mischiefs which flowed from the ancient and unreasonable notion that the absence of the judge for a single day, at any term of court, operated to discontinue all causes undisposed of and not formally continued to the next term, to discontinue the term, also, and to dissolve the court itself.
Affirmed.
