18 Fla. 22 | Fla. | 1881
delivered the opinion of the court.
This is a motion to dismiss this writ of error. Among the gi'ounds urged in support of the motion is that there is no bond for costs given by the plaintiffs in error. The plaintiffs in error here were the defendants in the court below. At common law the defendant, upon a judgment being rendered against him in a civil case, was entitled to a writ of error as matter of right, and it operated as a supersedeas without bond. 2 Bac. Abridg’t, Error B.
Under our statute the writ of error issues on demand as a matter of right, and no bond is required when the defendant in the Circuit Court sues out the writ, unless he wishes it to operate as a supersedeas. Then a bond is required. Thomp. Dig., 447, Sec. 4. A want of a bond is, therefore, no ground for dismissal of the writ.
Another ground urged as -cause for granting the motion
The last ground is that the scire facias ad audiendmn errores is not issued in the name of the State of Florida. The record discloses that this is the fact, and the question arises whether the writ of error for this reason should be dismissed. The Constitution, Section 2, Article 6, provides that the style of all process shall be, “ The State of Florida.” Proceedings in error are the prosecution of a new' suit or action, and questions as to the sufficiency of process arising in them are controlled to a great extent by the same rules as control in original actions. The citation in a writ of error performs the function of a summons ad respondendum in an ordinary action. The style of process is its title, and the title of process in civil eases has been the subject of amendment from a very early period in English history, (8 Co., 158; 1 Com., 579,) commencing with the statute of 14 Ed. III., Chap. 6, and embracing the various statutes of amendment mentioned in Thompsons’s Compilation of British Statutes in force in this State. (Thomp. Comp., pp. 13 to 40.) It may be conceived that this formal requirement being in ¿he Constitution is more binding upon the judiciary than if in an ordinary statute. Such, however, is not the case. We are as much bound by the one as the other, if the statute is within the powers of the Legislative Department of the government. It is equally the subject of amendment in one case as in the other. 2 Pick., 594; 32 N. H., 88 ; 15 N. H., 37; 7 Ark., 536; 15 Fla., 423. As covering the precise point here, see 10 Wis., 100; 35 Mo., 196.
Motion denied.
