Opinion
No. 35575.
June 12, 1944.
1. STATUTES.
It must be assumed that legislature in fixing court terms for counties in Fourth Judicial District was aware of rule declared by Supreme Court that where there is but one judge of a judicial district a term held in one county or part of district during time fixed by law for holding a term in another county or part of the district is illegal and that legislature did not intend to arrange terms so that they would overlap (Laws 1942, ch. 314).
2. COURTS.
The statute fixing court terms for various counties in Fourth Judicial District fixed for Holmes County two terms of four successive weeks each beginning on the first Monday in April and in October (Laws 1942, ch. 314).
3. COURTS.
An order made on Tuesday following the first Monday in October for adjournment of Holmes County Circuit Court to October 18, which was a day within the term, was expressly authorized by statute and presiding judge was authorized to sign the minutes containing such order on or during the day next in session or on any remaining day in session during the four weeks of the term (Code 1942, sec. 1649; Laws 1942, ch. 314).
4. COURTS.
Where order adjourning court until following day was made, entered and signed by presiding judge at close of first day of October term of Holmes County Circuit Court and at the close of following day an order was made for adjournment to October 18, which was a day within the term, though minutes containing such order were not signed on day order was made, presumption was that judge signed the minutes on the day to which adjournment was taken, and on each succeeding day throughout the term so long as in session so as to keep term open and validate conviction on October 21 (Code 1942, sec. 1649; Laws 1942, ch. 314).
APPEAL from the circuit court of Holmes county, HON. S.F. DAVIS, Judge.
G.H. McMorrough and P.P. Lindholm, both of Lexington, for appellant.
A term of court is a fixed period of time, and is fixed by the legislature, or by an order of the circuit judge, when authorized by law in calling a term of court.
7 Words Phrases, 3rd Series, p. 437, quoting from Walton v. State, 147 Miss. 851, 112 So. 790; Code of 1930, Sec. 473; Code of 1942, Sec. 1394.
Courts must be held at fixed times and places and for definite periods, in order that litigants may be charged with notice and the rights of parties fully protected.
Beard v. McLain, 117 Miss. 316, 78 So. 184; Walton v. State, supra.
The challenged statute, Chapter 314, Laws of 1942, which now appears in Mississippi Code of 1942, Volume 2, Section 1398, insofar as it effects Holmes County, reads as follows: "Holmes: On the first Monday in April and October. The first twelve days of each term shall be for civil business when a grand jury shall be convened, and the last twelve days of each term shall be for criminal business, but during the first twelve days of each term indictments may be returned and arraignments be had, and during the first twelve days of each term criminal cases may be tried, when the court is not engaged in the trial of civil cases." As will be observed, this statute, other than naming and fixing the convening dates, that is, the first Monday of April and the first Monday of October, does not set up any number of days, so as to have a fixed, specific or definite period of time to constitute a term of court, as required by law.
And where as in the case at bar, the trial judge, under Chapter 314, Laws of 1942, convenes court on October 4, 1943, the first Monday, transacts business for that day, signs an adjourning order, simply calling for adjournment to the next day, Tuesday, October 5th, and apparently sits October 5th, and then attempts to sit no more until the third Monday, the 18th, without first having entered an order on the minutes of Monday, the 4th — the only day certain fixed by the statute as a "term of court" — extending the regular term of court, or a special term of court being called, for a fixed term with a fixed adjournment date, and without even signing the pretended minutes of October 5th, and then does not attempt to sit again until October 18th, the third Monday of October, when the jurisdiction is promptly challenged by the defendant, the court overruling the objections to the jurisdiction, and proceeds through a trial and conviction on October 21st, seventeen days after October 4th, — the only fixed "term of court" definitely set up by the statute in question, — the trial of the defendant was ineffective, and the conviction was a nullity.
Watson v. State, 166 Miss. 194, 146 So. 122; Williams v. State, 179 Miss. 419, 174 So. 581.
The only power in the trial judge to extend either a regular term or a special term of court is to enter an order on the minutes, while the court is legally in session, extending the term, and the minutes then duly signed by the presiding judge, during the legal session. And in this case at bar, under Chapter 314, Laws of 1942, the only legal session provided thereby was the one day of October 4th, the first Monday. Any conviction on the case at bar, had on a trial commenced and finished on October 21st, of a pretended third week of court without such order being duly entered and the minutes duly signed, timely, is void and of no effect.
Watson v. State, supra; Williams v. State, supra; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Patton v. State, 194 Miss. 757, 12 So.2d 383.
The fact that Chapter 314, Laws of 1942, was amendatory of a law that gave Holmes County a fixed number of days for its terms of court is of no avail here, since the law is that a part of a statute amended, left out of the amending statute, is no longer the law.
Bell v. State, 118 Miss. 140, 79 So. 85; Nations v. Lovejoy, 80 Miss. 401, 31 So. 811; Constitution of 1890, Sec. 61.
The fact that the challenged statute, Chapter 314, Laws of 1942, contains the expressions, "the first twelve days shall be devoted to civil business" and "the last twelve days shall be devoted to criminal business," with nothing more, does not aid in construing the statute. In the first place, these expressions do not in themselves give "a fixed period of time" as a definite "term of court." There is nothing to indicate that there is not an indefinite number of days between "the first twelve days" and "the last twelve days." The "term of court," intended by the legislature, might just as well be thirty days, or eighteen days, or any number of days. The defendant was entitled to be given notice either by a statute, or by an order of the presiding judge, entered on the minutes and timely signed, precisely declaring when the legal session of court expires, so that his many rights arising thereunder might be fully protected.
Magness v. State, 103 Miss. 3)0, 60 So. 8; Code of 1930, Sec. 732; Code of 1942, Vol. 2, Sec. 1647.
The fact that the legislature of 1944, just adjourned, recognized the error in the law, Chapter 314, Laws of 1942, and has corrected same should lend some weight to the argument that probably the good lawyers on the respective Judiciary Committees of the two branches of the legislature saw this fatal error in the statute, and corrected same with House Bill No. 301, Chapter 312, Laws of 1944.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The appellant was indicted in the circuit court of Holmes County, Mississippi, at the April term, 1943. The case was not tried at that term but came on for trial at the October term of the circuit court of Holmes County. The court was organized at the October term on the 4th day of October, 1943. The jury was organized on the first day and various matters of business handled on the first day and regular order of adjournment was entered on the minutes of the court and signed, before adjourning, until Tuesday, the following day. On Tuesday an order was entered to adjourn until Monday morning, October 18, at 9 o'clock, but this order was not signed on that day.
On the 18th day of October the court reassembled pursuant to the order of adjournment, which was not signed on the day the order was made, and then signed the minutes. The defendant, with other defendants, on the 18th day of October filed a motion or plea to the jurisdiction of the court to proceed with the trial, in which motion it is alleged, "1. This Court is without jurisdiction at this time to try this case. 2. The minutes of this Court do not show that this present week is a part of a legal or lawful term of this Court. 3. The Minutes of this Court do not show that this present week is an extended part of a Regular Term or a Special Term of this Court, by an order duly entered thereon and said Minutes duly signed, timely, by the presiding Judge. 4. That the statute, Chapter 314, Laws of Mississippi 1942, is vague and indefinite, in that, it does not specify or prescribe any length of time for the Circuit Court Terms in this County, as required by law. 5. There is nothing in said Chapter 314, Laws 1942, to show that there is not an indefinite period of time between the so-called `first twelve days' and the so-called `last 12 days,' devoted exclusively to the trial of civil cases. 6. And for other causes to be shown on the hearing thereof."
Section 1398, Code of 1942 (Ch. 314, Laws of 1942), insofar as it applies to Holmes County, reads as follows: "Holmes: On the first Monday in April and October. The first twelve days of each term shall be for civil business when a grand jury shall be convened, and the last twelve days of each term shall be for criminal business, but during the first twelve days of each term indictments may be returned and arraignments be had, and during the first twelve days of each term, criminal cases may be tried when the court is not engaged in the trial of civil cases." The same provision is made in the same section for Leflore County, Mississippi.
It is contended, in the first place, that the statute is vague because no time of the term of the court is fixed by statute and that the court cannot sit as such except for a definite period fixed by law, or by an order of the circuit judge or court. It is argued that the language of the statute does not fix the definite term of court but only prescribes what may be done during the first twelve days of each term and during the last twelve days of each term, and that there is nothing in the statute to show that other days might be embraced in the term of court. In other words, "the first twelve days" and "the last twelve days" do not comprehended the definite fixed period for a term of court. This phrase does not seem to have been definitely before the court or any definite or particular decision made in reference to the language embraced in the statute, fixing the term of court, but I submit that when you take the provisions of Holmes County as a whole, the meaning is that the term shall be for twenty-four days and that no other reasonable meaning can be given to the statute.
Section 1394, Code of 1942, which is Chapter 13 of the First Extraordinary Session of 1936, provides for the holding of circuit courts and style of the courts and then provides "and shall continue for the full number of days specified if the business shall require," and means clearly, as applied to the section above mentioned, shall continue for twenty-four days mentioned in the statute if the business shall require that much time. The court must give to the statute a construction which will uphold it, if reasonably possible, and not a construction that would render it unconstitutional. I submit that the statute is reasonable and when construed in accordance with the above rule that it was constitutional and that the period of the court is fixed definitely.
In the second respect, the appellant contends that inasmuch as the order entered on the minutes adjourning the term until the 18th day of October was not signed on the day that the order was made, that the judge did not have power to sign it and give validity relating back to the date the order was made and the minutes actually made were not signed. If the term of court is for twenty-four days, as I submit it is, then Section 1649, Code of 1942 (Sec. 734, Code of 1930), authorizes the court to do the very thing that was here done even without entering on the minutes prior to the closing day of the trial.
See also Section 1665, Code of 1942; Grant v. State, 189 Miss. 341, 197 So. 826; Palmer v. State, 73 Miss. 780, 20 So. 156.
By Chapter 314, Laws 1942, the court terms for Holmes County, in the Fourth Judicial District, were fixed as follows: "On the first Monday in April and October. The first twelve days of each term shall be for civil business . . . and the last twelve days of each term shall be for criminal business . . ." It will be observed that the statute did not expressly prescribe the total number of days of the term, and appellant contends that under the rule announced in Beard v. McLain, 117 Miss. 316, 322, 78 So. 184, the term could not be kept open beyond the first day except by an order so providing and that the order to that effect must be entered on the minutes and the minutes signed on the first day, and that if this is not done the term expires with the close of the day. And that if such an order is made, entered on the minutes and signed on the first day, the same procedure must be followed on the second day and so on.
In the case now before us the court convened on the first Monday in October 1943, which was the fourth day of that month. Business of the day was transacted, and at the close of the day an order was made, entered and signed by the presiding judge, which was as follows: "Ordered that court do now adjourn until tomorrow morning at 9 o'clock." On Tuesday morning the court met pursuant to the order, and after the transaction of the business of that day an order was made as follows: "Ordered that court do now adjourn until Monday morning October 18, at 9 o'clock." The minutes containing this order were not signed on that day, and when the court convened on Monday morning, October 18th, a motion was filed by appellant, who had been indicted at a previous term, by which motion and by testimony introduced in its support, the validity of the term and the jurisdiction to proceed further was challenged.
The cited statute fixed the terms for all the five counties in that judicial district and by the statute the terms in Leflore County, one of the counties of the district, were fixed as follows: "Leflore county: On the first Monday in May and November," etc. We must assume that the legislature was aware of the rule declared by this court in Walton v. State, 147 Miss. 851, 868, 112 So. 790, that where there is but one judge of a judicial district, a term held in one county or part of the district during the time fixed by law for holding a term in another county or part of the district is illegal and the proceedings thereat will not be sustained. We are bound to assume, therefore, that the legislature did not intend to so arrange the terms in this district that the time of a term in any county in the district would overlap upon the term in any other county therein. Here, by the same statute, the terms for Holmes County were fixed as commencing on the first Monday in April and October and the terms in Leflore County in the same judicial district on the first Monday in May and November. Ordinarily, there are only four weeks between the first Monday in April and the first Monday in May or between the first Monday in October and the first Monday in November, whence it follows that by the statute in question the legislature intended to fix, and did fix, for Holmes County a term of four successive weeks beginning each on the first Monday in April and in October.
It further follows that inasmuch as the order made on Tuesday, October 5, 1943, for adjournment or recess to October 18th was to a day within the term, the recess order was expressly authorized by Section 734, Code 1930, Section 1649, Code 1942. And inasmuch as the day to which adjournment or recess had been taken was within the term, the judge was authorized to sign the minutes of October 5th on or during the day next in session, which, as stated, was on October 18th, or on any remaining day in session during the four weeks of the term, Grant v. State, 189 Miss. 341, 197 So. 826; and under the presumption that officers have done what the law requires them to do, when the contrary has not been shown, the presumption here is that the judge signed the minutes on or during Monday, October 18th, and on each succeeding day throughout the term, so long as in session, including those on the last day. Appellant was tried and convicted on October 21, 1943, and his contention that no lawful court was then in session and that his conviction has not been lawfully authenticated cannot be sustained.
Affirmed.