Smiser v. Robertson , 16 Ark. 599 ( 1855 )

Mr. Justice Scott

delivered the opinion of the Court.

In response to the writ of error in this case, there has been certified into this court, a transcript of the entire record and proceedings from its inception in the Phillips Circuit Court to a return of a forfeited forthcoming bond, regular upon its face, executed upon the levy of an execution issued upon the original judgment.

The statutory judgment, thus shown, extinguished the original judgment, to which a writ of error will no longer lie, as has been heretofore settled in this court. (Phillips et al. vs. Wills, Pease, & Co., 14 Ark. Rep. 595; Dougherty vs. McDonald, ib. 597.) And the question presented is whether or not that writ will now lie to this statutory judgment.

Writs of error lie only for the revision of the mistakes of courts of record, proceeding in the course of the common law. In the case of Ruddell vs. Magruder, 6 Eng. R. 579, it was belcl that tbe forfeited fortbcoming bond bas, by operation of law, tbe force and effect of a judgment; and that tbe sheriff’s return of forfeiture was conclusive record evidence of that fact, and tbat tbe execution does not issue upon tbe fortbcoming bond, but upon tbe statutory judgment, wbicb, by operation of law, springs into being upon tbe forfeiture.

Sncb,'then, is tbe legal effect of tbe forfeiture, without any order or judgment of tbe court thereon. Hence, there is no order or judgment of a court of record to complain of, through a writ of error. And such was tbe opinion of tbe Supreme Court of Alabama in a like case. (Taylor et al. vs. Powers, use, &c., 3 Ala. R. 285. See, also, McNutt et al. vs. Wilcox & Farn, 3 How. Mis. R. 421.)

Tbe cases cited to 'the contrary by tbe counsel for tbe plaintiffs in error, where tbe court entertaining tbe writ of error, looked to tbe original proceedings and final judgment, and finding them erroneous, held tbe second judgment also erroneous, as a dependant one, are all cases where tbe second was in fact tbe judgment of a court of record obtained after notice to tbe obligors in tbe fortbcoming bond and motion against them in court. Those cases, therefore,, have no bearing upon the question we have been considering.

In tbe view we have thus taken, we are of opinion tbat.tbe writ of error improvidently issued in this case, and it must therefore be dismissed.