Adams v. Owens

1 Ark. 135

• Court: Supreme Court of Arkansas
• Decided: July 15, 1838
• Status: Published

Opinion

Dickinson, Judge,

delivered the opinion of the Court: This is an action of debt, commenced in the Circuit Court of Conway county.— An amended declaration was filed, to which there was a demurrer sustained, and a transcript of the record brought into this Court ^y the plaintiffs at the last July Term, and continued to January Term, 1838, when the defendants moved to dismiss the appeal, because there was no final judgment or decree rendered in the Court below. Previous to any action upon the motion to dismiss, the plaintiffs on affidavit, suggested diminution of the record, and a writ of certiorari was awarded to the Clerk of Conway county to send up a new record.

The plaintiffs now come in and again ask that an alias certiorari be awarded them, and that a rule be entered against the Clerk to show cause why an attachment should not issue for not complying with the mandate of this Court. We have looked into the papers, and find that the Clerk has returned the writ issued to him, with anew transcript, which he certifies to be a true copy from the record; yet it does not cure the defect upon which the defendants moved at a former term to dismiss, and to remedy which the certiorari was ordered. In neither record does it appear that any final judgment was entered in the Circuit Court; and as the plaintiifs show no good cause for a ■ new writ, we are of opinion that the defendants are entitled to the benefit of their motion made at the last term of this Court and now renewed and insisted on. The appeal must therefore be dismissed.