Legal Opinion

Spalding v. Kincaid

Tennessee Supreme Court

Decided September 15, 1850PublishedCited by 26 opinions

This cause was tried in tbe Circuit Court of Claiborne County in 1845; and from tbe judgment then and there rendered, an appeal was prayed and granted to tbe Supreme Court. Five years elapsed, during which time no transcript of the record was forwarded to .the Supreme Court, nor did the appellant take any steps toward prosecuting his appeal.

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This cause was tried in tbe Circuit Court of Claiborne County in 1845; and from tbe judgment then and there rendered, an appeal was prayed and granted to tbe Supreme Court. Five years elapsed, during which time no transcript of the record was forwarded to .the Supreme Court, nor did the appellant take any steps toward prosecuting his appeal. Finally, at the September term, 1850, of the Supreme Court,' Maynard for the appellee, produced in Court a transcript of the record, and moved that the judgment of the Circuit Court be affirmed. ■ Sneed, for the appellant, opposed the motion on the ground…

1Opinion of the Court

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 *49being before us, we are bound to look into its merits. There is no error in- the record. [1]

Judgment affirmed.(1)…

2Cases cited1 opinion

  1. Norwood v. HumphreysTennessee Supreme Court · 1812

3Cited by26 opinions

  1. Neil v. Independent Realty Co.Supreme Court of Missouri · 1927
  2. Brady v. HoweMississippi Supreme Court · 1874
  3. Gulf Refining Co. v. FrazierCourt of Appeals of Tennessee · 1932
  4. Wilson v. MoudyCourt of Appeals of Tennessee · 1938
  5. Merriman v. Coca Cola Bottling Co.Court of Appeals of Tennessee · 1933

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