Governor v. Knight , 8 Ala. 297 ( 1845 )

COLLIER, C. J.

We have always considered cases of this character, as mere civil proceedings, in which either party supposing himself aggrieved by the judgment of a primary Court, may appeal to an appellate tribunal. If the present was res integra, we should be inclined to think that the mere refusal to permit the judgment nisi to be perfected nunc pro tunc was not revisable on error, inasmuch as it would not be definitive. It would perhaps be allowable to submit the motion a second time, or oftener, to the same Court, and even if this could not be done, an action might be maintained against the defendants, upon their recognizance. There can be no question that the data furnished by the record, was such as authorized the proper judgment to be rendered.

We say if this were a new question, we should not be disposed to entertain a writ of error. A mandamus certainly appears to us, to be the more appropriate remedy, but our predecessors held, that where a motion to complete a judgment nunc pro tunc was overruled, a writ of error would lie to revise the decision. This is nothing more than a mere question of practice, and as no inconvenience can result from adhering to that adjudication, we are contented to allow the maxim stare decisis to control us. [Wilkerson v. Goldthwaite, 1 Stew. & P. Rep. 159.]

It results that the judgment of the Circuit Court must be reversed and the case remanded.