delivered the opinion of the court.
The appellant was convicted in a court of a justice of the .peace for selling cocaine, and sentenced to pay a fine of $500 and to serve a term of six months in the county jail, from which an appeal was taken to the circuit court On the preliminary call of the docket he failed to respond when his case was reached, and thereupon, on motion of the district attorney, his appeal was dismissed, with a writ of procedendo. His counsel, who had appeared for him and requested that his case be passed, thereupon notified him by telephone of the action which had been taken in the matter, and he immediately went to the courthouse, arriving there as early as possible after receiving the notice, and before the preliminary call of the docket had been concluded, and before any case had been taken up for trial. He thereupon filed a motion requesting the court to set aside the dismissal of his appeal, and to reinstate the cause on the docket, which motion was overruled; hence this appeal.
It appears that appellant’s counsel was a member of the state senate, which was then in session at Jackson; that, severál days prior to the one on which the criminal docket was called, his counsel advised him that it would be impossible for him (counsel) to remain in Canton, the place of trial, waiting for this case to be tried, as he would have to be in attendance upon the senate; *16that he would get the case continued or set for a day certain, and in the last-named event would notify him what day the case would be tried. This his counsel failed to do, resulting in his being absent at the call of the docket., Counsel stated that he had been unable to make any agreement with the distinct attorney, and that he had no opportunity of presenting the matter to the court until the case was called, having been absent most of the time at Jackson. In so advising his client, counsel seems to have acted upon an impression which he had that indulgences of this character were always extended by the court to members of the state legislature while that body was in session.
Appellant ought to have been in attendance upon the court; but he seems to have acted in perfect good faith, believing that his counsel, by reason of being a member of the state senate,, which was then in session, had the right to^ have his cases set for a day certain. This being true, and as he arrived in the courtroom before the preliminary call of the docket had been ^completed, and before any case had been taken up' for trial, his motion to reinstate the cause ought to have been sustained. The case is not free from difficulty, for ordinarily, when a defendant in a criminal cause fails to respond when called in court, the proper course to pursue is either to take a forfeiture upon his bond, or, if his case is on appeal, to dismiss same with a writ of procedendo; and a forfeiture or procedendo, when taken, ought not to be set aside, unless it is clear that the defendant was not in fault.
The suggestion of error is sustained, the judgment heretofore entered is vacated, the judgment of the court below reversed, and the cause remanded. Reversed.