
    Welsh and others vs. Marshall and others.
    
    An appeal in the nature of a writ of error does not lie from a refusal' of the judge to order an execution to issue upon a judgment rendered in hie court, said judgment being by the judge superseded.
    In this case a fieri facias was put into the hands of Marshall, the sheriff of Henderson county, on the 22d September, 1831, against William Harmon and others, which issued from Henderson county court, for seven-hundred and eleven dollars thirty-six cents, besides interest and costs, in favor of the plaintiffs, which execution he refused to collect or return as required by law. At the ensuing November term, 1831, of Henderson county court, judgment was taken against him and his securities by motion, according to law. Neither appeal nor writ of error was prosecuted from this judgment. On the 14th of February, 1832, writs of certiorari and supersedeas were obtained from the circuit court of said county to remove the record and proceedings into that court. At the April term, 1832, a motion was made to dismiss the certiorari and supersedeas, which lay over until October term, 1833, when the court dismissed the certiorari and supersedeas and entered judgment against the sheriff and his securities in the certiorari bond. Some of these securities were the same persons who were his securities in the sheriff’s bond. The judgment upon the 
      certiorari bond in the circuit court is left without appeal or writ of error. On the 11th of February, 1834, the securities for the sheriff to the first judgment in the county court in November, 1831, filed their petition, and obtained from the circuit court a second supersedeas, alleging that they had made an important discovery, to wit, that the bond they had originally signed as securities for the sheriff was in blank and not filled up, and pray the benefit of a writ of error coram nobis in the circuit court, with a view to assign errors in fact to try the validity of the said bond. At the April term of the circuit court, 1834, the second supersedeas was discharged upon motion, when another petition was presented in open court for a third supersedeas, and second certiorari, and a writ of error coram nobis. Plaintiffs being notified of this application, resisted it. They moved the court for leave to take out execution upon their judgment, but this the court refused and granted the third super-sedeas, and second certiorari, to bring up the record of the county court, and to assign errors in fact in the circuit court and to have liberty to plead non est fac-tum to said bond, upon which the original judgment was had in the county court. To all of which proceedings the plaintiffs excepted, as well in refusing the plaintiffs their execution as in granting said several writs, and prayed an appeal in the nature of a writ of error to this court.
    
      Wm. Stoddart and M. Brown, for plaintiffs in error.
    
      A. B. Bradford and John Read, for defendants in error.
    The defendants in this cause assume the ground, 1. That the judgment in the circuit court, from which the writ of error is prosecuted, is an interlocutory judgment, not final, and therefore no writ of error lies. 2 Bacon, 452: 6 East, 336: 3 Salkeld, 115: 1 Archbold’s Practice, 208: 3 Haywood, 100, 175: recognized in the case of Booker vs. Hall, Martin and Yerger, 189.
    
      2d. That no writ of error of any description can be granted in this State two years after the rendition of the judgment that it is intended tocorrect. See Haywood and Cobbs, 215.
    3d. They insist that a certiorari, or any other writ, cannot be granted to bring the proceedings of the county court up to the circuit court, to try errors of fact there, which errors happened in the county court; and that a writ of error, coram nobis, never was used, nor intended to be used, for any other purpose than to correct errors in fact in the same court where they happened. 2 Bacon, 484 — 9: 9 Viner, Title Error, 540, 550: 2 Strange, 690, 949, 975: 1 Haywood’s Rep. 59: Taylor’s Rep. 149.
    4th. A certiorari will not lie when the party has delayed his remedies for more than two years. 4 Haywood’s Rep. 101 j 145: 3 Yerger’s Rep. 408.
    5th. The judgment of the county court is merged in that of the circuit court, and the reversal of the first is no reversal of the second, and we ought to have had the benefit of our execution.
   Peck, J.

delivered the opinion of the court.

This record is voluminous, but the question which arises thereon is within a very narrow compass. It is simply whether an appeal in the nature of a writ of error will lie from a refusal of the judge to order an execution upon a judgment rendered in his court, said judgment being by the judge superseded. We are of opinion that no writ of error lies in such a case, no final judgment having been given upon the question, which, in the opinion of this court, should suspend the execution. It is said the party might have rights suspended indefinitély, to his prejudice and ruin. It is sufficient to say in answer, that to have redress, the remedy which the law gives mu$t be pursued. Either wait until the court gives judgment upon the supersedeas, or, if no judgment be rendered on that when the party is entitled to it, bring a mandamus and compel the court to proceed. This case being prematurely brought up, must be dismissed for want of jurisdiction, and judgment for costs be rendered under the act of assembly against the plaintiffs in error for the costs of the cause in this court.

Writ of error dismissed.  