
    SPALDING v. KINCAID.
    (S. C., Thomp. Cas., 48-49.)
    Knoxville,
    September Term, 1850.
    1. SUPREME COURT PRACTICE. Appellee may file record any time for affirmance.
    The appellee may at any time file a transcript of the record and have the judgment below affirmed, and the supreme court cannot apply any statute of limitations to him. [Eurber v. Carter, 2 Sneed, 4; Freeman v. Henderson, 5 Cold., 647.]
    2 SAME. Same. Merits looked into.
    Under the Act of 1829, chapter 103, section 2, the supreme court could not dismiss any cause without examining it upon its merits. Therefore, where appellee filed the record and moved for an affirmance, the supreme co-urt was bound to look into the merits. [This statute was not brought into the Code of Tennessee (1858), and the court could now affirm the judgment in such case without examining into the merits. See Furber v: Carter, 2 Sneed, 4. Under the present statute (Shannon’s Code, sec. 6351), the supreme court cannot reverse except for errors affecting the merits, but this statute cannot apply to the affirmance of judgments upon appellee’s .production of the record and motion.]
    
      3. APPEAL. Simple appeal construed as appeal in error; effect of.
    Where a simple appeal is prayed for and granted from a jndg-mént of a court of law, it must be construed to mean an appeal in error, which does not vacate the judgment below, bnt merely suspends it till final judgment in the appellate court. [For appeals in error, see Code, secs. 4907-4910, and notes.]
    This cause was tried in the circuit court of Olaiborue county iu 1845; and from the judgment then and there rendered, an appeal ivas prayed and granted to the supreme court. Five years elapsed, during which time no transcript of the record was forwarded to the supreme court, nor did the appellant take any steps toward prosecuting his appeal.
    Finally, at the September term, 1850, of the supreme court, Maynard for the appellee, produced iu court a transcript of the record, and moved that the judgment of the circuit court be affirmed.
    Sneed, for the appellant, opposed the motion on the ground that the right of the appellee to' file the record and move for an affirmance of the judgment below was analogous to a Avrit of error and barred in two years.
   McKinney, J.:

The act pf 1829, chapter 103, section 2, forbids the court to dismiss any cause without examining it upon its merits. The prayer in this case is for simple appeal. No1 such appeal lies at law; and it must be construed to mean an appeal in error. That, like a writ of error, does not vacate the judgment below, bnt operates as a supersedeas. We see no reason why the appellee cannot at any time file the record, and we can apply no statute of limitations to him. The case being before us, we are bound to look into- its merits. There is no error in the record.

Judgment affirmed.  