Roebuck v. Duprey
Supreme Court of Alabama
In this case, a writ of error from the Circuit Court of Jefferson, returnable to the present term, with a transcript of the record attached, was filed. The plaintiff in error suggested to the Court, that it did not appear that a citation had been served on the defendaut, or that one had ever issusd; and thereupon moved, that a scire facias to hear errors be issued from this Court.
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In this case, a writ of error from the Circuit Court of Jefferson, returnable to the present term, with a transcript of the record attached, was filed. The plaintiff in error suggested to the Court, that it did not appear that a citation had been served on the defendaut, or that one had ever issusd; and thereupon moved, that a scire facias to hear errors be issued from this Court. The counsel for the defendant, declining to enter an appearance, moved the Court to dismiss the writ of error, and affirm the judgment; upon the production of a certificate, shewing that a writ to revise the…
1Opinion of the CourtCollier, C. J.
— According to the earlier decisions of this Court, where no citation accompanied the writ of error, and it was not shewn that one had issued, it appears to have been the practice, to dismiss the writ of error, on motion of the defendant. Such a practice in our opinion, is not promotive of justice and should not be adhered to. The defendant cannot be prejudiced, by the failure to issue a citation upon suing out the writ of error, since he must be in Court, either by himself or counsel, before he can move to dismiss the cause-, and then, if he desires, may enter an appearance, and obtain every…
2Cited by7 opinions
- Groendyke v. MusgraveSupreme Court of Iowa · 1904
- Carleton & Slade v. Goodwin'sSupreme Court of Alabama · 1867
- Winthrow v. Woodward Iron Co.Supreme Court of Alabama · 1886
- Caviness v. PeopleSupreme Court of Colorado · 1900
- Turner v. CollinsSupreme Court of Georgia · 1850
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