Appeal from the Circuit Court of Allegheny county.

offered to file a certificate, signed by himself this day, that whereas the justices of the Cir•cuit Court of Allegheny county had in October last, ordered a judgment to be entered in this cause, for want of an affidavit of defence under the 20th rule of the Circuit Court, without the consent of the defendants or their attorney, and though the said attorney, in the absence of his clients, was ready and willing to proceed to trial of the merits by jury, he believed that “the same “ are sufficient in law, to obtain a decision in favour of his clients, “ and are not made for the purpose of delay; ” according to the 4th section of the late law, passed 20th March 1799. 4 St. Laws, 364.

. Yeates and Smith Justices, who held the last Circuit Court in Allegheny county, declared, that though they retained no recollection *of the particular circumstances of this case, p¡, they thought it most highly improbable, that they could L' I23 have denied the defendants a hearing, or that the facts stated could have happened.

Shippen, C. J. How is this matter to be ascertained ? Ought not the certificate to have been given during the Circuit Court, when if any previous misunderstanding had taken place, the same could readily be rectified ? Are plaintiffs on obtaining judgments in the Circuit Courts, to wait until the ensuing term in the Supreme Court, until they can be informed, whether the defendants intend to appeal ?

The law erecting the Circuit Courts, does not direct, when the certificate shall be subscribed by counsel ; nor any other rule of the court that we know of. If the party is dissatisfied with the decision of the Circuit Court, he may appeal, by the expressions of the law, to the Supreme Court, and obtain from the clerk of the Circuit Court, a record of all the proceedings, and file the same with the prothonotary of the Supreme Court, before the next term; in failure whereof, &c., but no appeal shall be available, unless the counsel for the appellant shall state in writing, his reasons for said appeal, certifying, &c. All these pre-requisites have been complied with, and the defendants apprehend they are in due time. Plaintiffs may proceed to execution on their judgments, if certificates are not given and the appeals entered sitting the Circuit Court; but the appeal in such case is in nature of a writ of error, where the execution is begun, and is no supersedeas thereto. This action was removed to the last September term, and by the rules of the Circuit Court, no affidavit of defence was .necessary until the third term. Had it been removed to March term, then the affidavit might have been required at the second term, by the 20th rule of the court. My instructions are, that the Circuit Court directed the entry of the judgment, on the mere ground, that there was no affidavit of defence.

…

Citation profile

How this case has been treated — in progress