McDougald v. Edward , 17 Ga. 185 ( 1855 )

By the) Court.

Starnes, J.

delivering the opinion.

[1.] Eor the plaintiff in error, it is argued, that every scirefacias issued for the purpose of making parties, should be founded upon an intelligible record. That accordingly, when the defendant in this case died, an order by the Court, directing scire facias to issue, should have been, placed upon the minutes; or if not, a suggestion and order should have been made in writing, before the Clerk, and filed among the proceedings in the cause. That without such order, the record lacks symmetry, and is unintelligible.

We agree with the Counsel for the plaintiff in error, that such an order of file is needed, that the record in such a case may be rendered easily intelligible. But we incline to think, that by the Statutes regulating the issuing of scire facias, this may be done by the Clerk without the granting or filing of this order,

It is said that if our legislation is laoMng in this regard, the 65th Common Law Rule of Court prescribes this requirement. To this it is replied, that the provisions of this- section apply only to cases of scire facias to revive judgment. There is something in the language employed, to encourage this conclusion. Yet we believe the uniform construction has always been, in our State, that this section applied to cases of scire facias to make parties. The practice, however, we think, has not been to enter a formjl order directing scire facias to issue; but after the suggestion, it has usually been issued as matter of course.

However all this may be, we are not of the opinion that the ■ absence of such order, in this case, was a fatal defect; for whether the question is controlled by the Statute or the rule-of Court, the order might have been put of file by way of amendment, nunc pro tunc. In either point of view, it issues as matter of course; and the filing of the same is merely for the symmetry and completion of the record. Considering, then, that no substantial justice is to be effected by sending back the case, and somewhat doubtful, as we are, as to the-proper construction to be placed upon this rule of Court, we - hesitate to disturb a settled practice, by interfering with the= judgment of the Court below.