
    Gregory E. Wilson v. Town of Handsboro.
    1. Circuit Court Practice. Appeal from 'municipal court. Dismissal and writ of procedendo. Opportunity to defend.
    
    Where a defendant was convicted in a municipal court of the violation of an ordinance and appealed to the circuit court, it will be error to dismiss the appeal and award a writ of procedendo, without having the defendant called and given opportunity to defend.
    2. Supreme Court Practice. Appeal from a dismissal. What brought into review.
    
    An appeal to the supreme court from the judgment of a circuit court, dismissing an appeal from a municipal court and awarding a writ of procedendo, does not bring into review a previous judgment overruling a demurrer to the affidavit upon which the prosecution was based.
    Erom tbe circuit court of Harrison county.
    Hon. William H. Hardy, Judge.
    Wilson, appellant, ivas convicted in tbe municipal court of Handsboro of violating an ordinance of tbe town, appealed to tbe circuit court and there demurred to the affidavit, charging, or purporting to charge tbe offense. His demurrer was overruled. Afterwards tbe circuit court dismissed bis appeal and awarded a writ of procedendo to tbe municipal court, without calling him or giving him opportunity to defend. He appealed to tbe supreme court from tbe judgment of dismissal.
    
      E. M. Barber, for appellant.
    
      George Butler, assistant attorney-general, for appellee.
   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.  