Kennedy v. Spencer

COLLIER, J.

— ’The defendant, by his counsel, moved the Court for a judgment of affirmance on certificate. It appears that there is a good writ of e tor on file, attached to which are several sheets of manuscript, purporting to be a transcript of proceedin ?s between the parties in the Circuit Court of Mobile, but neither subscribed or in any manner altes ed by the clerk.

That the transcript is not so authenticated as to authorise us to regard it in considering the errors assigned, without defendant’s consent, is a point on which we do not doubt. By an act of the legislature,* as well as by a practice coeval with our State government, the clerk of the inferior Court is required to give to the party suing out a writ of error, an attested copy of the record of his case.. The plaintiff is not, then, authorised to have his case revised, upon a transcript that bears less conclusive evidence of its genuineness.

We are not, however, at liberty to affirm the judgment on certificate, at the first term, where there is a record on file, however imperfect it may be. The practice of this Court in such cases, is to grant a cer-tiorari, to perfect the transcript. And this practice seems to us to be authorised by a just interpretation of our statutes, and in advancement of the ends of justice.

The motion is therefore, denied.

GOLDTHWAITE, J., not sitting.

* D!s*