Spalding v. Kincaid

1 Thompson 48, 1 Shan. Cas. 31

• Court: Tennessee Supreme Court
• Decided: September 15, 1850
• Status: Published

Opinion

McKInney, J.:

The act of 1829, chapter 103, section 2, forbids the Court to dismiss any cause without examining it upon its merits. The prayer in this case is for simple appeal. No such appeal lies at law; and it must be construed to ■ mean an appeal in error. That, like a writ of error, does not vacate the judgment below, but operates as a supersedeas. We see no reason why the appellee cannot at any time file the record, and we can apply no statute of limitations to him. The case being before us, we are bound to look into its merits. There is no error in- the record.

[1]

Judgment affirmed.

(1) Appellee may produce transcript in Supreme Court and move for an affirmance of judgment, when. Freeman v. Henderson, 5 Cold. 647 ; Furber v. Carter, 2 Sneed 1. And the appellant cannot be heard to. object on account of lapse of time, since appeal. Ib. As to affirmance in similar cases in appeal to Circuit Court, see Code 3143, 3150, 3151. See also Bustard v. Cheatham, 1 Tenn. 370; Norwood v. Humphreys, 2 Tenn. 188; Stuart v. Pasmore, 5 Hayw. 30; Nichols v. Colvill, 1 Tenn. 81; Gregory v. Burnett, 1 Humph. 60; McDonald v. Smith, 7 Yerg.304; Duncan v. McGee, 7 Yerg. 103; Suggs v. Suggs, 1 Tenn. 2.