Paul Crippen, Plaintiff in Error, vs. Felix Livingston, Defendant in Error, 12 Fla. 638

WESTCOTT., J., delivered the opinion of the court: This case is brought here by writ of error upon a judgment rendered in the circuit court in Nassau county, and a motion is now made to dismiss the writ upon the ground that it has not been prosecuted within the time required by the statute. It appears from the certificate of the clerk accompanying the record that the judgment in this case was rendered and recorded on the 21st, of December, A. D. 1866, and that the 22d day of December, A. D. 1866', was the last day of the term.

The writ of error, by which the case is brought here, ivas issued from this court on the 19th December, A. D. 1868, and was filed in the court below on the 2d January, A. D. 1869.

Tlio act of 1861 (ch. 1096, §49, Larvs of Florida) provides that “ no j udgment in any cause shall ho reversed or avoided for any error or defect therein, unless error be commenced or brought and prosecuted with effect within íavo years after such judgment signed or entered of record.” The corresponding act controlling this subject in the courts of the United States (act of 1789, ch. 20, §22) provides that Avrits of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, and the Supreme Court of the United States has held that a Avrit of error is not brought in the legal meaning of the term until it is filed in the court which rendered the judgment, and that the day on which the writ may have been issued, or on which it b$ars test, are not material in deciding the question. 11 Howard, 208.

The record of the inferior court is not transferred, its proceedings are not affected, and, indeed, but little folloAArs the simple issuing of the writ. Our statute requires that the writ shall be commenced and prosecuted Avith effect, or brought and prosecuted Avith effect, the Avords being: “Unless error be commenced or brought and prosecuted with effect” within two years after judgment signed or entered. To come within- the legal meaning of this statute, the writ must be filed in the in-* ferior court before two years after judgment entered. In this case two years and twelve days have transpired.

We deem it unnecessary to determine what may be the effect of a failure to serve the scire facias to hear errors .“ at least tAveiAty-five days before the first day of the term to which the writ of error is returnable.” Under the rules of this court and the statute we think the prope - method to take advantage of the limitation of the statute1 is by this motion or. a motion to quash. Our practice in such matters corresponds under the rules to the practice of the Supreme Court of the United States, and this is the practice in that court. 11 Howard, 208. The writ must be dismissed.