Cowles & Powell v. Frear

PETERS, J. In this case, the appellees, Cowles & Powell, obtained judgment against the appellants, William H. Frear et al., on the 31st day of January, 1869, in the circuit court of Montgomery county, in this State, for a considerable debt, besides interest and cost of suit. On this judgment the appellants applied for and obtained an appeal to this court on the 2d day of June, 1869, returnable to the present term. A proper citation or certificate in error was issued on this appeal to the appellees, by the clerk of said circuit court. No transcript of the record of this case was delivered to the clerk of this court, as required by the 24th Rule of Practice, within the first three days of the term. On the 17th day of June, 1869, the same being a regular motion day of this court, said appellees came into this [643] court, and produced the citation or certificate in error issued by the clerk of said circuit court in this cause, which bears date the 5th day of June, 1869, and thereupon they moved to have said judgment affirmed. An appeal should be taken to the next ensuing term of the supreme court after it is granted. If this is not done, the appeal will be dismissed.—Willingham v. Harrell, 34 Ala. 680. After an appeal is ’taken, the transcript of the record must be delivered to the clerk of this court, and errors assigned within the first three days of the term. The rule of practice requiring this is in these words : “ If the transcript of the record is not delivered to the clerk, and errors assigned, within the first three days of the term, the defendant in error is entitled, at any time before the record is filed and errors assigned, to his judgment of affirmance, on production of the proper citation or certificate. — Eevised Code, p. 818, Eule 24 ; Eevised Code, §§ 3499, 3498, 3497- The defendants in error have brought their case strictly within this rule; therefore, let the judgment be affirmed, according to the certificate produced.