Sewall v. Bates' Administrators

3 Stew. 199 | Ala. | 1830

By JUDGE TAYLOR.

That a party situated as Se-wall is, should have some mode provided by which he can get his cause into the appellate Court for revision, is. certain. It was determined at the last term, that this cannot be done by suing out a writ of error from the office of the Clerk of the Circuit Court, in the manner which is proscribed, when the parties to the judgment are living.^a The statute prescribes the mode of suing out a writ of error, which cannot be used in this case; therefore, to secure to the plaintiff his rights, some other practice'must be adopted. It is believed that the course is to order a certiorari to the Clerk of the Circuit Court, commanding him to certify and send up to the next term of this Court, a transcript of the record, and also to award a writ of scire facias against Joseph Bates, Jr. and Theophilus L. Toul-min, the administrators, requiring them to appear at the next term of this Court, and shew cause if any they can, why they should not be made parties to the suit in this Court.

It certainly would not be proper to permit the transcript which h'as been exhibited, to sustain the petition, to be filed in this Court, as the record upon which errors are to be assigned, because it has been brought here voluntarily by a party, and not in obedience to any fiat of the Court.

* Let writs of certiorari and scire facias issue in conformity with the foregoing opinion.

a 2 Stewart 462.