Buckler v. State , 173 Miss. 350 ( 1935 )

I am unable to concur in holding that the refusal of the court below to hear the appellant on the merits of his petition was not a final judgment. If we leave out of view the words "writ of error coram nobis" and the archaic learning thereon, the case will be simplified and the question for decision will clearly appear.

Under our practice, a writ of error coram nobis is wholly unnecessary in order to obtain the review of a judgment rendered under such circumstances as to require the court to set it aside. All that is required is the filing of a motion or petition to that effect in the court which rendered the judgment. If the facts set forth in the petition, if true, require the setting aside of the judgment, the court should hear it on its merits and set the judgment aside or not according to the evidence then heard. Carraway v. State, 163 Miss. 639, 141 So. 342. If a stay of execution is necessary pending the hearing of the motion or petition, the court or judge thereof can grant it.

What the court below here determined was that the appellant's petition presented on its face no ground for setting aside the judgment, and therefore he was not entitled to a hearing on the merits. This ruling being in term time was a judicial act and a final judgment. What occurred here was the same as what occurred in Hawie v. State, 125 Miss. 589, 88 So. 167. It is true that the petition was there demurred to, but that added nothing to the fact that what the court there did was to decline to permit the petitioner to introduce evidence in support of the allegations of his petition. Carraway v. State, supra, is not in point on the question of the appellant's right to an appeal; for the ruling appealed from was made in vacation and was in no sense of the word a judgment. I am therefore unable to concur in the dismissal of the appeal on the ground that the order appealed from is not a final judgment.

If the order of the court should be held to be a final judgment, a serious question of the right of the appellant to appeal therefrom, under section 16, Code 1930, by which the right of appeal is conferred and limited, would arise. I shall not express any opinion thereon, but will say that section 355, p. 521, 3 C.J., is here of interest, and that the question is not foreclosed by our former decisions.

As the only question here decided is the right of the appellant to an appeal, I express no opinion on the other questions discussed by my associates.

I am authorized to say that Justice ANDERSON concurs in this opinion in so far as it holds that the order appealed from is a final judgment.