The judgment is in accordance with the statute, secs. 179 to 181 inclusive, Prac. Act. The judgment of the Court of First Instance is good. The Court had authority under the laws of Mexico to render such judgment. (Zamiego Practicis Forencio, vol. i., p. 211; for translation, see note B, 1 Hill, 139.)
Fromthis judgment the appellant had two years to appeal, and not having appealed, he is bound by it. (Stat. 1850, Act to supersede certain Courts, p. 77, sec. 6.)
An appeal brings up no more than a writ of error at common law. (3 Sandford, 593.)
Note B, above referred to, is thus given: " When the person cannot be found, the place where he is gone to is not known, or if those to be cited are numerous and uncertain, the citation shall be made by advertisement (or notices) affixed in public (conspicuous) places of the jurisdiction (tribunal) and its neighborhood, and inserting them in the official bulletins, in the Gazette, or other periodicals." (Elements Practica Forense, vol. i., 211.)
No brief for the appellant on file.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
This was an action upon a judgment of the Court of First Instance, the records of which belong to the District Court. The judgment which was the basis of this suit was rendered without any personal service on the defendant, and indeed without any service which by the laws then in force could be deemed an equivalent for personal service. There is, therefore, no dispute that the judgment of the Court of First Instance is invalid, and insufficient to sustain the present judgment, provided that the record of the first-mentioned judgment is properly brought before us.
This has been done by a certiorari from this Court, and it is insisted by the respondent that it should have been made part of the record of this cause by a statement of it as evidence, or a bill of exceptions. The sole object of a bill of exceptions is to make a record of the special action of the Court of what is not record by the general law.
By such action it attains the sanction and verity which enables the revising Court to consider it. But that which is a record already, cannot receive any higher degree of sanction by being made record a second time.
Where, therefore, it appears from the declaration that the Court below must render judgment simply by an inspection of its own records, it is obviously the most proper mode upon an appeal to bring up the latter by a certiorari, in order that it may receive the construction of the appellate court, which is the only object of the appeal.
Judgment reversed, and cause remanded.
[The above opinion was filed December 5, 1853. December 12, an elaborate petition was filed for a rehearing of the case, and on the same day the Court ordered all proceedings to be stayed until the petition could be heard.]