Lollar v. City of Greenwood

*366 Smith, C. J., delivered the opinion of the court The appellant, Lollar, was convicted in the municipal court of the city of Greenwood for having- intoxicating liquor in possession, and the appellant, Cox, was convicted on a similar charge in the court of a justice of the peace. Both of them appealed to the county court and were there again convicted and sentenced, from which they appealed to the circuit court where the judgments of the county court were affirmed, and they have brought the cases to this court. Cox filed a bond for an appeal to the circuit court on the 14th day of April, 1927, and Lollar filed a petition on April 16th for an appeal to the circuit court on an affidavit setting forth his inability to give a bond therefor. Due notice was served on the county court stenographer in each case that a transcript of the evidence was desired, pursuant to which the stenographer filed the transcript of the evidence with the cleric of the county court in Lollar’s case, on Thursday, May 26th, and in Cox’s case, oil Saturday, May 28th. The circuit court convened on Monday, May 16, 1927. On the next day all cases on the docket that had been appealed from the county court were set for trial on June 6th, When these cases were called for trial on June 6th, the appellants objected to the court proceeding- therewith on the ground: (1) That the cases were returnable not to that, but to the next, term of the circuit court; and (2) That the stenographer’s transcripts of the evidence on which the cases were tried in the county court had not become a part of the record. Section 5' of chapter 131, Laws of 1926, by which county courts were created, provides that “appeals of the coun *367 ty court shall he to the circuit court,” and “the circuit court shall he deemed always open for the hearings of such appeals;” that “appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, ’ ’ unless the time for taking the appeal shall be extended by the county judge. We are not now called on to decide whether a cas,e, appealed from a county court to a circuit court at a time when the circuit court is in session, is returnable to that or a succeeding term of the court, for the reason that these appeals were taken prior to the convening of the term of the circuit court at which the cases were tried. Assuming, but merely for the sake of the argument, that appeals from the county court to the circuit court are returnable only to a term of the circuit court to be thereafter begun, such term, in the absence of a provision in the statute to the contrary, must necessarily be the term to commence next after the taking of the appeal. The length of time between the taking of the appeal and the convening of the circuit court is of consequence only when one of the parties desires a postponement of the trial in the circuit court on the ground that he has not had sufficient time in which to prepare therefor. New York Hospital v. Knox, 57 Miss. 600. Section 2 of the county court statute provides that: “The rules of pleading, practice, and procedure in the said county court shall be the same as those now, or which may hereafter "be established as governing the several other courts; . . . that is to say, ... if the matter be such as would otherwise (if there were no county court)be in the circuit court, the practice shall be the same as in the circuit court. ’ ’ Under this provision of the statute, when a case is appealed to the county court from a municipal court or the court of a justice of the peace, the procedure on the trial of the case in the.county court, unless the statute elsewhere otherwise provides, is in all respects the same as *368 that of the circuit court in similar cases. The procedure by which the stenographer’s transcript of the evidence, introduced on the trial of a case in the county court, becomes a part of the record is, therefore, that provided by chapter 156, Laws 192® (Hemingway’s Code 1927, section 597), under which the appellant’s counsel has ten days in which to examine the transcript after it has been filed with the clerk of the court, and the appellee’s counsel has five days in which so to do after the delivery of the "transcript to him by the appellant’s counsel. When the cases were tried in the circuit court neither of these periods of time had expired, so that the stenographer’s transcripts of the evidence had not then become a part of the records. The cases, as hereinbefore stated, were returnable to the term of the circuit court at which they were tried. They were therefore properly placed on the docket thereof by the clerk thereof, who is also the clerk of the county court. They were not triable, however, until the stenographer’s transcripts of the evidence became a part of the records, or the time for making them a part thereof had expired. They should have been continued or passed to a later day. Grand Court of Calanthe v. Baskin, 108 Miss. 752, 67 So. 210. Reversed and remanded.