Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-13

Z T@seAA1oeF erhIs IB58s 8s---------------s
0dssl ~ tossPh SPGFgI6 W sGHaisT 7SpurriD.
writ of eFF0R iss8lad By tke=t lerIS O.
TINS Court aeaton upOn .the transcript Of tbe
record oelng hled in his Office and bond given as re
t4alred BY law pursuant to section 93i77 of tha
Sode.9A motion has been entered By the defendant
IN error TO dismiss the writ Of error On the ground
Of the PIaintiffs non-conIplisric with tl Txsior NJ
section IeS, requiring that five avs notice in ,v1i
ting shall be given 10 the adverse uartv of the in
? tention to apply for the writs -a - 1-'-r
The argument in support Of the motion assumes
that this n0deeis necessary preliminary step prece-
dent to the application for writ Of error in all
eaSes sud cofseq quentiy, tat ne writ cannot be reg
alsEy issued nn4ii sfseF the exPir4ti6nOT I'VE davs
from seryine -of seh n0tiess In judgment this
ls-not the proper construction Of the4eT, however
plausible il may seem, uEOn literal reading Of the
section 1t would lead consequences 50 icQngruous
and absurd that Il Is not 70 Be supposed thar such
| was the intention of the iLegisiatareyoI s1an
This provision of the Code and indeed all its pro
visions in regard to the mode Of prosecuting writs
| OF error TO the Suprefne Court are in substance,
bat re1ehaetnent Of the provisions Il the law as
they previously existed Various msthoSls are pre-
seEihed fer ohtaiRing writ Of error. Is may be
optaned-as in the present ease-frOm the Clerk Of
the Supreme Court within one year amer tile iudg-
naens or decree sought be reversed by sfni6Iy filing
transcript of the record IN his Ofce; IN Vacation
and giving bond required BY law section 3I77
which substantially Incorporates the prOyisiOns Of
the act Of 1911 ch. y, sec IL Or the writ NAV be
granted By order Of the Supreme Court IN term
ti@e BY any one Of the Judges of said Court in
vacation -,-------1 ----.--. ..----- --- --er
| Whichever of these modes may be pursued. there
can be no question that notice to the adverse party
rs n1Se alike necessafys this is conceded The point
70 be determined is. whether the notice ecessariy
pTecede the application for the writ of error may
not be given after it has been applied for and obtain
ed We are led 70 the conclusion tlst the iatter il
thec correct construction in view of the obvious
son and e5ieot Of this requirement OF the statute
which, in general must control the literal imPOrtof
.he2 object could not have been to entite the ad-
party appear and resist the issasHce Of the
wriko, The Rrsseeulipa of a simple writ Of error,
IS as much matter OF right as Is the prosecution OF
an appeal Under our system the right 70 pursue
either remedy, at the party's own peril cannot be
questioned or Zainsaged. There would have been
sense, therefore, in pr0ydiag that the adverse
party should have an opportunity Of appearing be-
fore the Clerk when the writ was applied Tor, the
latrer having no discretion TO judge Of the pr6priety
of the ADp5catisn or to refuse It,. And TINS may
perhaps be said also in respect to aPpeafOn for
q writ of error merely, made to single Judge OF
the Supreme Court
9FheFe I'M addition to writ Of errors saDsssefeas
III likewise desired there Wonld be- more ReasOn in
alloYing the adverse party 9PPoztgHtF o. gPpear-
lug before the Judge TO whom the application -
made to show cause against the issuance of SUPER
SafsaSi Vet il cannot be supposed that Il was con
templated By the Legislature, thastfs nerfsof the
case should be discussed aud adjudged by Asingie
Judge al chambers upon an application for ss'DeT-
81 iATErit of error Is regarded in Law a q new
suit ( aud, like all other suits, may bscOumienced
By the party, at his own peril without notesto the
adverse party. But, as in all other suits the de-
fendant must be notified Of the pendancy ST the
suit and haeela day in Court TO make Ms defence
And the five days notice prescribed in theS0de, Is
the process and mode deemed proper, by the Legis
ature for bringing the defendant in error into the
sPpeiate court Such. in our Judgment, Is the in
tehtion of shis requirement and the Peope9s con
structOn TO be given To it, And the effect Is that
the defendant is not to be considered iuzcOurt
Until after the expiration Of five DAYS from the time
Of service there Of --- -....-=.' -. u ---.@o
u,Tlis provision of the Code, with sOmsoasdSlfcs
ton, is copied from the act Of 1884 eh. D. 81
But although the provision Of the latter actismore
stringent in its terms than that re-enapted h the
Codes yet since the passage of the act Of E6B, ch.
p sec. II, practice had grown up, slentlyy g hch
mad been sanctioned by this court that Il was suth-
ieht If notice had been issued BY the Clerk Of the
supreme Court after filing Of the record IN ms Of
ieS. And in view OF this course Of Practice and in
accordance Herewith. We suppose the pE9Iislon of
his Code was adopted and intended TO be under
stood I'd ''-i ~
IN follows that the motion must be disalE6we1i.
$50 5r.il 20 -.-s..lrl .lt -.-ta hChENEY-
81 A true ceDy,- Test C. W NEtgoN, t-., go