Lowe v. Morris

13 Ga. 147

• Court: Supreme Court of Georgia
• Decided: February 15, 1853
• Docket: No. 16
• Status: Published

Opinions

The Court not being unanimous in the decision, delivered their opinions seriatim.

Warner, J.

[1.] This is a motion to dismiss the writ of error, on the ground that the Clerk of this Court has omitted to annex the seal of the Court thereto, as required by the 20th rule of practice. That rule requires, “ that writs of error shall issue in the name of the Governor of the State, shall bear teste in the name of the Judges of this- Court, shall be signed by the Cleric, and sealed with the seal of this Court, and shall be returnable to the next succeeding term. ” 1 Kelly, 14. By the 22d rule of practice, it is made the duty of the Clerk of this Court, “ to keep on hand for the use of the bar, blank writs of error, according to the form adopted by this Court, duly by him signed and sealed, to be furnished to the bar on application therefor.” This writ of error has been issued by the Clerk in exact conformity"with the rule, except the omission to attach the seal of the Court to it. The Clerk of the Superior Court has obeyed it by sending up tho record to this Court, and the parties have acted in obedience to it. By the 1st section of the Act of 1852, it is declared, “ that when the original writ of error, original citation and notice, and the original bill of exceptions, shall be filed, and served within the time prescribed by law, no cause pending in the Supreme Court shall be dismissed, but any other error or defect shall be amended instanter.” See Acts of the Legislature 1852, page 215. Has there been a writ of error filed in this case, as contemplated by the Constitution ? By the 1st section of the 3d article of the Constitution, the Supreme Court has jurisdiction ’alone, for the trial and correction of errors in Law and Equity, from the Superior Courts of the several circuits, brought before it by writs of error. Prince, 909. No particular form is prescribed for the writ of error, by the Constitution or the Act of the Legislature organizing the Supreme Court. Blackstone defines a writ of error to be, a writ which lies for some supposed mistake in the proceedings of a Court of Record, and which only lies upon matter of law arising upon the face of the proceedings. 3 Blackstone’s Com. 406. Mr. Sergeant Williams in a note to Jaques vs. Sesar, says, “ A writ of error is an original writ, issuing out of the Court of. Chancery, in the nature as well of a certiorari to remove a record from an inferior into a superior Court, as of a commission to' the Judges of such superior Court to examine the reeord and to affirm or reverse it, according to law; and lies where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution, of a suit in a Court of Record.” 2 Saunders’ Rep. 101, note 1. The Constitution contemplates such a writ of error as Ayas knoAvn to the Common Law, according to the foregoing definition, without any regard to the specific form thereof.

It is true, the rule of Court prescribes the form, but that rule, in my judgment, is merely directory to the Clerk. The question is not, whether the parties to whom the writ of error Avas directed could be punished for not obeying it, because not in conformity with the rule; but the question fe) whether the party applying' for this writ of error, issued by the Cleric of this Court, shall be deprived of his constitutional right, merely because our own officer has omitted to put the seal of the Court to the writ, as directed by the rule ? If the writ of error is a mere nullity without the seal of the Court attached to it, then, it cannot be amended: but that is an assumed proposition, which I deny. •• The rule does n^declare, that a writ of error issued in any other manner than that prescribed by the rule, shall be null and void: the rule is not supposed to have aiiy more binding effect than an Act of the Legislature. In the case of Stephens et al vs. Crawford, Governor, &c. (1 Kelly, 581,) this Court held, “ that if a bond required by Statute departs from its strict provisions, as where the penalty is larger than that named in the Act, it is, notwithstanding, good, so far as it is in conformity with it', unless the Statute expressly declares, that all bonds hot taken in conformity with its provisions, shall be void.” Now this writ of error has issued in exact conformity with, the requirements of the rule, except as to the seal of the Court being attached' to it. The writ has issued in the name of the Governor of the State, bears teste in the name of the Judges of this Court, is signed by the Clerk thereof, and has performed all the functions of a writ of error, as contemplated by the Constitution. If the writ of error is good, so far as it is in conformity with the requirements of the rule, according to the principle settled in Stephens vs. Crawford, it cannot be said to be a mere nullity, simply because it lacks the seal of the Court. In my judgment, the rule is merely directory to the Clerk as to the manner in which writs of error issued by him shall be authenticated, and if he violates its provisions, it is an irregularity, which may subject him to personal peril and responsibility, but will not deprive the party of his constitutional right to be heard in this Court, as to the matters involved in the record which has been sent up here in obedience to our own mandate, attested by the official signature of our own officer, merely because he has failed to obey the direction of our rule of practice, in attaching the seal of the Court to the writ of error, which is in all other respects perfect.

I am therefore of the opinion, that a writ of error has been filed, as contemplated by the Constitution and the Act of 1852, and that the clerical omission of not attaching the seal of the Court thereto may be amended instanter.