68 Miss. 712 | Miss. | 1891
delivered the opinion of the court.
In acting upon appellant’s motion to approve his appeal bond, docket the cause and proceed to trial, we are of opinion that the court below should not have denied the same wholly, because in the then condition of the case, it was impossible to grant the entire prayer of the motion. With the petition for certiorari, and its very full exhibits before the court, if it was true (as appears from the record before us) that the magistrate had not been served with notice to produce the original papers and proceedings, the proper process should have been issued, and the cause delayed to await the return of that process. If, however, in fact, the summons for the magistrate, issued when the petition for certiorari was filed, had been executed upon that officer, he should have been compelled by due process to produce the desired papers and proceedings.
After the papers and records from the magistrate’s court had been brought into court, we are of opinion that the circuit court should have proceeded to hear evidence touching the alleged misconduct of the magistrate, in taking and retaining the appeal bond, and in afterwards declining to approve the same, though the same was perfectly good, as is alleged, and, if satisfied of the solvency of the sureties on this bond, and of the truth of the facts averred as to his misconduct in dealing with it, should have approved the bond, and proceeded to hear the case on its merits, as on an appeal.
Reversed and remanded.
