Trahern v. Shackelford , 4 Miss. 73 ( 1838 )

Mr. Justice Pray

delivered the opinion of the court.

This cause comes before us on a motion to dismiss the same; because,

The citation in this cause has not been tested, and is, therefore, void; and is not in other respects a proper citation.

This cause is not,true; we find the citation tested as follows:

“ Witness the Hon. Wm. L. Sharkey, presiding judge of the High Court of Errors and Appeals of said state, and seal of the circuit court of Hinds county, one thousand eight hundred and thirty-seven.”

“The Rev. Code, p. 155i sect. 25, provides that all writs and process issuing from the Supreme Court shall bear test of the presiding judge of said court, and shall be under the seal of said court and signed by the clerk thereof.”

The act of 1837, p. 333, sect. 1, authorises the clerks of the several circuit courts to issue writs of error; “ and also a citation to the adverse party, directed and returnable in the manner now directed by law.”

The clerks of the circuit courts issue the process authorised by the last mentioned act under the seal of their respective courts. The practice of the circuit clerks has been approved by this court; but we require that such process shall be tested and signed by the clerk, as is provided in the Revised Code.

In contemplation of law the process issues out of this court; and the clerks of the circuit court in the issuing thereof, in so much, act as the clerks of this court.

The requisitions of the law having been complied with in the test of this citation, the motion to dismiss must be overruled.