| Ala. | Jun 15, 1837
This is amotion to affirm a judgment of the Circuit Court of Mobile county, on the certificate of the clerk, that a writ of error had been taken to this Court, and bond given to supersede the judgment. Two certificates of the clerk are presented to us. One certifies that a writ of error was sued out in said cause, returnable to the January term, eighteen hundred and thirty-six, of this Court; and bond for supersedeas executed, on the eleventh of December, eighteen hundred and thirty-five. The other recites that a writ of error, .has be.en sued out in this case, returnable to the June
By an act of the Legislature, (Aikin’s Digest, 256,) it is provided that, “in case, the transcript of the record, in the cause below, and the assignment of errors, should not be delivered to the clerk of the Supreme Court, on or before the third day of the term, to which the writ of error shall be returnable, it shall be lawful for the Supreme Court, ,at that term, or any term thereafter, on motion of the defendant in error,, or his attorney, and on pi-oducing a copy of thetcitation, served upon the defendants, certified by the sheriff, or on producing a certificate from the clerk of the Court, from which the writ of error issued, showing the time at which it issued, and^ amount for which judgment was rendered, and at what term of the Court below — to affirm the judgment of the Circuit Court, with costs of suit, unless the plaintiff in error, or some other person, shall make affidavit, that the transcript of the record, could .not be procured from the clerk of the Court below: but the cause may be reinstated on the docket, at any time du* ring the term to which the writ shall be made returnable, upon showing sufficient cause, to said Supreme Court.”
In this case, the defendant in error had, doubtless, a right to move for affirmance on the certificate, presented at any time after suing out the writs of error, and before the filing of the record; and some explanations have been made at the bar, why this has not been done. But the fact is now
The affirmative of this proposition is maintained on the statute recited, which, in substance, declares that if the transcript be not filed at the first term of this Court after the writ of error is sued out, the judgment may be affirmed, on the certificate of the clerk of the Court in which the judgment was rendered. Is it imperative on the plaintiff in error, to file the transcript of the record, at the first term after the writ of error is sued out — or show good reason for not doing so? And may he not, ifj from any, cause, the transcript and writ of error were not filed in time, sue out another writ of error, at any time before the affirmance of the judgment, on certificate? We are of that opinion. — ■ At any Court, which has intervened since the fir^t writ of error sued out in this case, the defendant might have had his judgment affirmed. He has not done so, — and now asks the Court to affirm his judgment, while the causéis depending in Court on a writ of error.
It is manifest, that the Court are invested with a large discretion over this subject; and we can not think it would be a proper exercise of it, in
The motion for an affirmance of the judgment below, is refused.