Goforth v. Adams ( 1849 )

Opinion of the Court by Treat, C. J.:

Lyman Adams obtained a judgment against W. G. Goforth, administrator of Haile, at the May term, 1846, of the St. Clair Circuit Court. The record was filed in this Court at the December term, 1847, and a writ of error sued out in the name of Thomas, public administrator, as plaintiff in error, in place of Goforth, who had deceased. At the last term of this Court the writ of error was dismissed, as having improvidently issued. Thomas vs. Adams, 5 Gilman, 319. On the 20th November, 1849, a second writ of error was sued out, in the name of W. W. Goforth, administrator of Haile, which the defendant in error now moves to dismiss.

The motion must prevail. This court has now no jurisdiction of the case. The judgment was recovered in one of the counties in the first grand division; and a writ of error for its reversal must issue from the Court in that district. The fact that the record was filed here, before the new constitution went into operation, makes no difference. The writ of error first obtained was dismissed, and from that moment the case passed from the control of this Court. The'suing out of the second writ of error was the commencement of a new suit, and when it was issued, this Court, by the express provisions of the constitution, in the absence of any stipulation of the parties, had no jurisdiction over the case.

Motion sustained.