42 So. 129 | Miss. | 1906
delivered the opinion of the court.
Polk was convicted in the mayor’s court on the 30th day of December, 1905, of an assault and 'battery, in violation of a municipal ordinance, and fined $25 and costs, and claims to have appealed from the judgment to’ the circuit court. In compliance with sec. 88 of the code of 1892, the mayor transmitted to the clerk of the circuit court what purported -to be a certified copy of the record in the case, containing some, but not all, of the original papers. It appears that no appeal bond was sent up with the papers, nor does the record show that any bond was given. The case was regularly docketed by the circuit clerk and wais called for trial by the circuit judge at a regular term of the circuit court, whereupon the attorney for the town made a motion to dismiss the appeal and for a writ of procedendo, assigning, as the reason, that defendant had filed no appeal bond. In answer to this motion the defendant offered to produce evidence that he had duly made and filed an appeal bond, and that it was properly and duly approved. The court declined to admit this evidence. The defendant then made a second motion suggesting a diminution of the. record in the case, and asking for a writ of cerliorwri to send up the appeal bond. This second motion was overruled by the court, and judgment was rendered dismissing the appeal, and granting the writ of procedendo to the court below.
It will ‘be observed that in the motion made by defendant to be allowed to introduce oral proof that he had executed the appeal bond, he does not tender a substantial copy of the bond oi' disclose who the names of his sureties are, or the amount of the bond, or in any other way describe it, but merely asks that
Let the ease he affirmed.