Wilson v. Town of Handsboro

96 Miss. 376 | Miss. | 1909

Mayes, J.,

delivered tbe opinion of tbe court.'

Tbe question of whether or not tbe court bad tbe power to correct a former judgment overruling tbe demurrer, and in lien thereof enter a judgment sustaining same, is in no way involved in this appeal. The action of the court on that question is not brought in review by the appeal, since no appeal was ever prosecuted therefrom. The judgment appealed from is the judgment dismissing the case, with a writ of procedendo to the mayor’s court. Before the court had the power to dismiss, and order the writ of procedendo to issue, it was necessary that appellant be called and given an opportunity to defend. The record nowhere shows that this was done. So far .as the record shows, it appears that the court, without calling appellant’s case for trial, dismissed the appeal, and issued a writ of procedendo to the court below, and in doing this we .think the court erred. Reversed and remanded.