Wells v. Woodley

5 Miss. 484

Opinions

Mi\ Justice Tuhneii :

On motion by defendant to dismiss the suit. The plaintiffs sued out their writ of -error, on' the 16th day of March, 1840," and a citation was issued as the law directs. On the 22d day of February, 1840, an act was passed, changing-the time of holding this court from the first Monday in December to the first Monday in July,-in each and every year: But the act, under the provision of the constitution, did not. take effect until sixty days after its approval by the governor, it not being otherwise provided. In the-mean time, within the sixty days, what other course had suitors, than to pursue the old law ? The change in the law could not be known until weeks after its passage. In this state of things, the act making no specific provision for these cases, what are the rights of the parties ? They are entitled to appeals and writs of- error, from the circuit to the appellate court, by the law of the land. The plaintiff applied for and sued out -his writ according’ to law. But the term of the court then existing was subsequently abolished-by the legislature, and another time appointed. -

Well, after this was known in the state, the plaintiff in error applied for a new citation, to the July term, which was issued and served; and the defendant is there notified of the proper time and place for his appearance. Here is.positive notice, besides the constructive notice afforded him by the records and proceedings of the court, where his. suit was pending, and where he would necessarily have to apply for execution on his judgment. This, with the writ of error already sued out, was sufficient to bring the cause of the parties legally before this court at its July term. .And it seems- it did bring him here; for he has appeared by counsel, and entered his motion to dismiss the cause.,

This is an answer to the first two grounds of the motion.

The third reason assigned is, that there is no certified copy’of the writ of error bond in the record. This is no ground for dismissing the writ of error. A writ of error -is a matter of right, without a bond. , The bond is given to justify and entitle the party to a supersedeas. There is no motion to dismiss the super-, sedeas for want of a bond. If there was, the original bond, approved as it is by the clerk who took it, appearing among the papers, is deemed, sufficient. , • ■

The question of the insufficiency of the sureties cannot be reached by the.present motion.' -

It is the opinion of the court, that where the writ of error bond is taken and filed, its appearance in the record is sufficient 'evidence of its having been approved by the proper authority.

Motion overruled.