
    Kennard v. State.
    No. 41793
    March 6, 1961
    127 So. 2d 848
    
      
      R. Jess Brown, Vicksburg, for appellant.
    
      G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
   Gillespie, J.

On September 29, 1959, appellant was convicted in Justice of tbe Peace Court on two charges: Reckless driving and possession of intoxicating liquor. Subsequent proceedings in the two cases were identical and we consider tbe two cases as one.

On September 29, 1959, appellant filed an appeal bond returnable “to tbe next term” of county court. Wben tbe next term of county court convened on October 12, 1959, an order for a writ of procedendo was entered directing tbe justice of tbe peace court to enforce tbe judgment. On the following morning, October 13, 1959, appellant filed bis motion to set aside tbe order for writ of procedendo so tbat appellant could have a trial on tbe merits. Tbe county court overruled tbe motion. Appellant appealed to circuit court where tbe county court’s order was affirmed. Appellant then brought this appeal.

While not a decisive factor in tbe case, it should be stated tbat appellant and bis attorney apparently understood tbe appeal was returnable to tbe November term of court.

Tbe undisputed facts and tbe testimony of tbe circuit clerk and county attorney show tbe facts as next stated. Appellant read a newspaper article sometime during tbe week preceding October 12, 1959, indicating to him tbe case would come up during tbe October term of county court beginning October 12. He then went to tbe circuit clerk (who is also clerk of tbe county court) and inquired of tbe clerk wben bis case would be tried. Tbe clerk told appellant be did not know tbe date of trial but tbat tbe docket would be set at 10 o’clock Monday morning (October 12, 1959). According to tbe testimony of tbe county attorney, wbo prosecutes for tbe county and lias control of tbe criminal docket of tbe court for tbe prosecution, appellant came to bis office a few minutes before 10 o’clock on Monday, October 12, 1959, and tbe county attorney testified as follows: ‘ ‘ Tben be ask me when bis case would be tried. I told bim I did not know exactly, that I thought tbe judge, or understood tbe judge, would have a jury next week, that it would be set though, yesterday (the testimony was being’ given tbe following day, October 13, 1959), and tben be (appellant) said, ‘Would I be notified,’ and I told bim, no, you will not be notified, but, whatever date your case should be set on, tbe clerk will mail a copy of tbe docket to your attorney, if you have an attorney of record.” Tbe county attorney testified that appellant tben said, “Well, tben, my attorney will be notified.” Tbe county attorney tben replied,” .... that was tbe general practice, and that we are going to call tbe docket in a few minutes over there, and you go over there and sit in tbe courtroom and when your case is called, it will be set and tben you will know yourself what date it will be on. ” Appellant tben went to tbe circuit court room on tbe second floor of tbe courthouse and no one was there. Since be understood bis attorney, wbo lived in another county, would be notified of tbe date of tbe trial, appellant left. Tbe county court convened in tbe basement, and, as already stated, tbe writ of procedendo was ordered when tbe docket was called. Tbe name of appellant’s attorney did not appear on tbe county court docket.

Tbe question in this case is whether tbe trial judge abused bis discretion in refusing to set aside tbe writ of procedendo so that appellant could have a trial on tbe merits. Tbe effect of tbe order for tbe writ of procedendo was to dismiss the appeal or enter a judgment by default. A number of cases has been decided involving the same question in civil cases. We should, consider those cases because the rule in procedural matters is no harsher than in civil cases. Cf. National Casualty Company vs. Calhoun, 219 Miss. 9, 67 So. 2d 908; Gortney v. City of New Albany, 171 Miss. 898, 158 So. 921.

This Coui’t said in the early case of. Yost v. Alderson, 58 Miss. 40, that, “It is argued that the cause shown was not good and sufficient; that mere inattention and forgetfulness cannot be a valid excuse for a failure to discharge a legal duty. This may be true when such inattention or forgetfulness has occasioned a failure which has been injurious to the adverse party, or the action of that party, based on such failure and caused by it, cannot be reversed without injury to him. But when the neglect is in the mere conduct of a suit, and its consequences do not operate injuriously, its condonation by the judge can do no harm except to deprive the adverse party of an advantage which he has secured in virtue of such neglect, and in that case the party guilty of the neglect should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of justice, not shackles to bind courts to the perpetration of wrong. When their non-observance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause, the fault should be corrected. ...”

In Tonkel v. Williams, 146 Miss. 842, 112 So. 368, this Court said that where no possible harm could come to plaintiff by having a trial on the merits, the court should not summarily deny a hearing simply because defendant is caught unawares because of inadvertence or even wilful neglect of attorney where the case can be tried and disposed of in ordinary way at that term of court.

Citing other cases, this Court held in Alexander v. Hyland, 208 Miss. 890, 45 So. 2d 739, that the attitude of this Court has always been favorable to trials on the merits subject to certain limitations, and that where it appears that an application to set aside a default judgment tends to the advancement of justice, courts should the more readily incline to favor it.

Citing an earlier case, the Court, in Manning v. Lovett Motor Co., 228 Miss. 191, 87 So. 2d 494, said: “We realize the importance of the enforcement of the rules of procedure and practice in the courts, and that the law favors the diligent and is against the careless; and we appreciate the fact that the large discretion resting with the circuit judge in dealing with such questions before him should not be encroached upon, restricted, nor considered abused, unless it manifestly appears that the discretion exercised in any particular case was wrongful and resulted in injustice to a litigant. We do not think any fixed, ironclad rule can be safely adopted with reference to the setting aside of default judgments, but that the courts must look to the facts of the particular case, and if from the whole record the court can reasonably say that justice and right demand that the default judgment should be set aside and a trial had upon the merits, it should be done, and thereby bring about a result by trial on the merits of the controversy between the parties.

“Courts are instituted primarily for the purpose of determining disputes and controversies between litigants upon the merits of the case, and much liberality should be allowed toward that end. Of course, rules governing the practice and procedure in the courts must be established and maintained in order to bring about efficient and prompt administration of justice, and when such rules are violated by litigants, in failing to appear and defend at the proper time when duly summoned, there should be proper and reasonable punishment for such negligence on the part of the litigant.

“Where there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits.”

In a number of cases this Court has reversed the trial court for failure to reinstate an appeal from the justice of the peace court, or police court, when the appellant failed to appear because of inadvertence, mistake or misunderstanding, but nevertheless acted in good faith and promptly made a motion to have the appeal reinstated, and the State was not prejudiced. Morris v. City of Tupelo, 129 Miss. 887, 93 So. 453; Long v. State, 94 Miss. 230, 48 So. 726; Develling v. State, 97 Miss. 11, 52 So. 484; Judon v. State, 131 Miss. 560, 95 So. 521; Cannon v. State, 134 Miss. 805, 100 So. 8; McGowan v. State, 181 Miss. 42, 178 So. 594.

The authorities are clear that this Court will not disturb the discretionary action of the trial court in dismissing an appeal when it appears that the appellant’s failure to appear was due to wilful neglect, where he acted in bad faith, or otherwise trifled with the court, or where the State was prejudiced. But the facts in the present case show that appellant was not guilty of wilful neglect, bad faith, or that he trifled with the operation of the court; and it is manifest that the State was not prejudiced.

Notwithstanding the fact that appellant’s attorney did not appear on the return day of appellant’s appeal, the appellant himself can hardly be said to have been neglectful in the matter. He went to the clerk who told him the docket would be set at 10 o’clock A.M., Monday. A few minutes before the convening of court, appellant talked to the county attorneys who told appellant that his attorney would be notified when the case was to be tried, which was understood to be the following-week. Under the circumstances, appellant was justified in believing- that his attorney would be notified in accordance with the county attorney’s statement. Moreover, the following morning- the motion to set aside the order was made and heard. Since the jury was to be called for the following- week, the motion to set aside the order for writ of procedendo was actually heard approximately a week before the case could have been heard on the merits. Consequently, the State was not inconvenienced, much less prejudiced, unless resistance to the motion itself be considered an inconvenience. The statement of the county attorney and that of the judge in his opinion clearly shows that the case would have been set and appellant’s attorney notified if the name of the attorney had appeared on the docket. Conceding that it was the duty of appellant’s attorney to request the clerk to put his name on the docket as attorney for appellant, this failure is too trivial a matter to justify the denial of a trial on the merits when both appellant and his attorney promptly appeared the following morning* while the court was still in session and when no prejudice resulted to the State. We are, therefore, of the opinion that the overruling of appellant’s motion was an abuse of discretion and the case is reversed for trial on the merits.

Reversed and remanded.

McGehee, C. J., and Arrington, McElroy and Jones, JJ., concur.  