Jenkins v. State

Handy, J.,

delivered the opinion of the court.

It appears by the record that at the April Term of Madison-Circuit Court, 1856, a motion was made in behalf of the State for a fine against the plaintiff in error, sheriff of Yazoo county, for failing to make return of certain bench warrants to the April Term, 1855, issued upon an indictment in that court, and made returnable to that term of the court. A judgment nisi, &c., was rendered upon the motion, and a scire facias was issued thereupon ; to which the plaintiff in error appeared, and pleaded among other things that no notice whatever was given to him of the motion against him.

The record contains nothing showing that notice was given, nor does the judgment nisi, &c., show, that it appeared to the court that any notice of the motion was given to the sheriff. In this state of the case it was submitted to the court upon the above plea with other pleas, and a judgment final was awarded upon the scire facias.

This judgment was manifestly erroneous. The statute upon which the proceeding was founded, expressly requires that the fine shall be entered upon “ reasonable notice being first given to the sheriff.” The record should have shown that such notice was given of the motion, either by written notice executed and returned, or by his appearance to the motion, or by statement in the record of the judgment nisi, that it appeared to the court that due notice was given. And without such evidence of notice, the judgment on this plea to the scire facias should have been for the defendant below.

The judgment is reversed, and a judgment ordered for the defendant on the scire facias.