The Opinion of the Court was delivered by
Wilson, C. J.The Court has considered the motion of the counsel for the plaintiff to dismiss the appeal taken in this case by the defendants, and are satisfied that the motion must prevail, arid the appeal be dismissed. The usual and correct practice is, to base a motion of this kind upon a certified copy of the record of the judgment, &c. of the Circuit Court appealed from, or a certificate of the clerk that an appeal has been allowed and perfected, whereby the judgment of the Court below has been suspended. But the affidavit shows that this course could not be adopted in this case, because the clerk of the Circuit Court was one of the defendants below, and upon an application of the counsel for the plaintiff to him for a certified copy of the record, he refused to give it. The counsel was therefore forced to resort to affidavits, as the only means by which he could show that an appeal had been taken and by which he could obtain its dismissal. The sufficiency of these affidavits, however, is objected to, and it is true that the names of all the defendants. are not stated, and that, in other respects, they are not so full or specific as they might have been, and as would be required by the Court in ordinary cases, but under the circumstances of this case we consider them sufficiently so. If there is no such case as is alleged, or if no appeal has been taken, no injury can be done to the defendants, nor have they any ground to object to the motion.
The refusal of the clerk-to furnish a copy of the record upon the application of plaintiff’s counsel, and his offer to pay for the same, deprived him of the necessary information to make a more specific statement of the cáse, and was a palpable and gross violation of the official duty of the" clerk, and one which, we are constrained to say, justly subjects him to the severe animadversion of the Circuit Court, if not to removal from office. If a clerk shall be permitted to refuse to furnish a certified copy of a record at his discretion, the privilege which the law guaranties to each party to have the decision of the Circuit Court reviewed in this Court, will be wrested from him by the unwarrantable assumption of authority by this officer. He was one of the parties in this case, and to defeat the operation of a judgment against himself and others, he has violated his official duty, and set at naught the plain and positive requirements of the law. Such conduct in an officer of the law, and of the Court, cannot for a moment be tolerated, or suffered to pass, without the expression of our disapprobation and censure.
As the names of all the defendants are not disclosed by the affidavits, we cannot render judgment for costs against them, but we dismiss the appeal without costs.
Appeal dismissed.