Lecat v. Salle

By Mr. Justice Thornton : The question presented in this case, by the motion of defendant, is one of practice, which it is desirable to have settled. The writ of error was returned to this court, with the transcript, at January term, 1833. No citation accompanied the record ; but a certificate of the clerk shows, that one was issued', with the writ of error.' This is the third term since the filing of the record; and up to this time there has been no service of any process upon the defendant, to bring him into court. A motion was made at the last term, by the defendant, to dismiss the writ of error for want of such notice, and overruled. At this term the motion is renewed by the defendant, and is resisted on the ground that a similar motion was heretofore made, and also that the mere making of the motion was such an appearance as superseded the necessity of any process. By former /decisions 'of this court, it is held, that where no citation ever issued from the inferior court, on motjon) tjje wrjt 0f error would be quashed.a* If one did issue, but was defective, or not served in time, then a sci. fa. ad aud. from this court, was the proper process to coerce an appearance.b* It has been settled, that where process is necessary to issue from this court, in the analagous cases of scü fa., as representatives of a litigant dying after the cause is brought into this court — that a failure for two terms to pro--secute the writ would be cause to dismiss the writ of error, on motion. [289] . The motion made in this causé, at the last term, wás pre.mature, and therefore overruled. It is competent, however, now to make it, and it will be entertained, and granted, unless the plaintiff make the requisite showingof surprise, by the supposed effect of the premature motion, and decision thereon, to be equivalent to the service of process. .In which case, the writ of error will not be dismissed, but sci. fa. ad. aud. awarded» Footnotes [a] A1. Rep. 97 [b] Al. Rep. 183