* Corpus Juris-Cyc. References: Habeas Corpus, 29CJ, p. 25, n. 4; p. 27, n. 6; p. 32, n. 25; p. 41, n. 13, 16; p. 46, n. 68; p. 51, n. 25; p. 52, n. 27; Judges, 33CJ, p. 1019, n. 87, 89; p. 1022, n. 48; Justices of the Peace, 35CJ, p. 547, n. 15. By an affidavit filed in a justice of the peace court, the appellee, Irvan Barnes, was charged with the unlawful possession of intoxicating liquors, and when the case came on for trial in the justice court, he filed a motion to dismiss the charge against him on the ground that the justice of the peace had a direct pecuniary interest in the result of the trial, for the reason that he would receive no pay for his services therein unless the defendant was convicted on said charge. This motion was overruled, and the defendant was convicted and sentenced to pay a fine of one hundred dollars and all costs. Upon the failure of the defendant to pay this fine and costs, the justice of the peace issued a mittimus directed to the sheriff of the county, commanding that the said defendant be incarcerated in the county jail until said fine and costs were paid. Thereupon the defendant presented to the circuit judge of the district a petition praying for a writ of habeas corpus. The writ was issued, and upon the hearing of the cause an order was entered discharging the defendant from custody, and from this order this appeal was prosecuted.
The question presented by this appeal is ruled by the case ofDixon v. Rowland, 143 Miss. 270, 108 So. 807, in which it was held that —
"Disqualification, under Constitution 1890, section 165, or Code 1906, section 2724 [Hemingway's 1927 Code, section 2378], of justice of the peace to preside in liquor *Page 603 prosecution may not be collaterally attacked in habeas corpus proceedings."
In discussing the question, the court there said: "The disqualification of a judge because of his interest in a case or of his relationship to a party thereto can be availed of only by an objection to the judge made on that ground, either before his judgment is rendered, or, if made thereafter, before the judge has lost control of the judgment (Y. M.V.R.R. Co. v. Kirk,102 Miss. 41, 58 So. 710, 834, 42 L.R.A. [N.S.] 1172, Ann. Cas. 1914B [1914C] 968), and his decision thereon is subject to review only in an appellate court on an appeal thereto if an appeal to such a court lies from the judgment rendered."
The petition for the writ of habeas corpus set forth in detail the proceedings in the justice court, and alleged that appellee was not guilty of the crime for which he was convicted, and the answer of the sheriff contained an admission that — "The petition and exhibits thereto in this cause set forth the true facts in reference to all proceedings had in the trial and commitment of the said Irvan Barnes, before the Honorable J.L. Cooper, justice of the peace."
Counsel representing the respective parties entered into an agreement that — "The original petition and the exhibits thereto set forth are the true facts in reference to the arrest, trial, and commitment of the petitioner, Irvan Barnes, and all of the allegations of said petition and exhibits are admitted as true."
Counsel for appellee contends that this was an agreement on the part of the sheriff that the defendant was not guilty of the charge of which he stood convicted, which entitled him to be discharged by writ of habeas corpus.
We think it is probable that counsel representing the sheriff did not intend to agree that the appellee was innocent of the charge on which he had been convicted, but, conceding that such is the effect of the written agreement, *Page 604 still habeas corpus is not available to determine the guilt or innocence, and secure the discharge, of one who is confined under a lawful judgment. The justice of the peace had jurisdiction of the offense charged, and of the person of the defendant, and it has been held by this court that, since the disqualification of a judge may be waived by the consent of the parties and of the judge, disqualification of the judge does not render the judgment void but simply voidable (Y. M.V.R.R. Co. v. Kirk,102 Miss. 41, 58 So. 710, 834, 42 L.R.A. [N.S.] 1172, Ann. Cas. 1914C, 968), and it is expressly provided by the Code of 1906, section 2446 (Hemingway's 1927 Code, section 2146), that habeascorpus shall not be available to effect "the discharge of any person convicted of an offense, . . . nor of any person suffering imprisonment under lawful judgment."
The judgment of the court below will therefore be reversed, and judgment will be entered here remanding the appellee to the custody of the appellant.
Reversed, and judgment here.
Reversed.