Foster v. Harrison

Decided June 15, 1841

Supreme Court of Alabama · decided 1841-06-15

<p>1. When a writ of error is sued out to remove a case from the county to the circuit court, and the record is not filed, but the writ of error is dismissed, and the judgment of the county court affirmed on certificate, the judgment entry must shew affirmatively, every fact necessary to authorise the judgment pn certificate.</p> <p>2. When the judgment entry recites that it appeared from the certificate of the clerk of the county court, that one of two defendants to a judgment in that court, prayed for and obtained a writ of error, and executed bond, &c. &e., thelegal presumption is, that the writ of error was sued out by one, in the name of both defendants.</p>

Decided 1841-06-15

GOLDTHWAITE, J.

¶11. There is no question but that, according to the course of practice in this State, judgments such as this, must show every fact affirmatively in the judgment entry that is necessary to sustain the summary jurisdiction exercised by the court.

¶22. It -is equally clear that the recitals of the judgment con*26form to this view with the utmost precision and correctness. The legal presumtion arises, that both defendants were named as parties in the writ of error, when the clerk certifies that one of them prayed for and obtained the writ; because on such case-alone, is the clerk authorised to issue it, or to supersede the judgment.

¶3Let the judgment be affirmed.

¶4-o-