¶1This case, in all essential particulars, is identical with that of the State of Louisiana v. Julian Casanave (No. 24729) ante, p. 715, 90 South. 107, this day decided, with the following differences only: The charge pending against relator is different; and, immediately before the motion to quash was taken up to be disposed of, the sheriff went into the courtyard, where relator happened to be, and took him into court.
¶2Relator avers that he was in the courtyard by mere chance, having gone there to take a friend to court; that he. had no knowledge that the case would be taken up that day; that, when he appeared in court, the judge, without affording him an opportunity to communicate with his counsel, or to offer evidence in support of his motion, overruled it. The respondent judge, in his return, makes no mention of the presence of relator in court, but files an answer similar to that filed in the Oasanave Case above mentioned.
¶3Relator avers that he received no notice of- the fixing of his motion for trial. We gather from the record that he was entitled to at least two days’ notice, to bo mailed him. There is no copy of such notice, nor return thereon, in the record. As relator seems to have objected to going to trial, under the circumstances, and, as he was entitled to the notice prescribed by the rules of court, the motion to quash should not have been taken up for trial then.
¶4As this case, in all other respects, is similar to the case of the State of Louisiana v. Julian Casanave, No. 24729 of the docket of this court, therefore:
¶5For the reasons here assigned, and for those assigned in the Casanave Case, it is ordered, adjudged, and decreed that the judgment of the lower court, overruling said motion to quash, be annulled, vacated, and set aside, and that the judge of said court proceed to fix and try said motion according to law, and the views herein expressed.