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sent the record down to the inferior court, it should be directed to the former and not to the latter court, for in contemplation of law the record is in the possession and custody of the higher court until it is actually remitted to the lower court."

§ 442. The writ of error the foundation of the jurisdiction. The allowance of the writ of error, and its issuance, by competent authority, and its service, constitute the foundation of the jurisdiction of the federal supreme court to review and revise the final judgments and decrees of state courts. The allowance alone is not sufficient; but the writ must be actually issued and served, before the jurisdiction attaches.70

§ 443. What judges may allow the writ of error.-Any judge authorized to sign a citation may allow the writ of error. The federal statute provides that the citation shall be signed by the chief justice, or judge or chancellor of the state court rendering the judgment or passing the decree complained of, or by a justice of the supreme court of the United States; 71 and it is now settled that when the supreme court of a state is composed of a chief justice and several associate justices, and the judgment complained of was rendered by that court the writ of error can be allowed only by the chief justice of that court, or by a justice of the federal supreme court, but if the judgment complained of was rendered by a state court composed of a single judge or chancellor, the writ of error may be allowed by that judge or chancellor, or by a justice of the supreme court of the United States.72

§ 444. What clerks authorized to issue the writ of error.-It is still an open question whether, when a writ of error is allowed by a judge of a state court to review its own judgment py the federal supreme court, the clerk of the state court has authority to issue the writ; but the federal statute gives no

68 Hoagland v. Wurts, 105 U. S. 701-703 (26:1109); New Jersey v. Wilson, 7 Cranch. 164 (3:303); Bridge Props. v. Hoboken Co., 1 Wall. 116 (17:571); New Jersey v. Yard, 95 U. S. 104 (24:352).

69 Butler v. Gage, 138 U. S. 5261 (34:869); Gleason v. Florida, 9 Wall. 779-784 (19:730); Ex parte Ralston, 119 U. S. 613-615 (30: 506); Hartford Fire Ins. Co. v.

Van Duzer, 9 Wall. 784 (19:827);
Northwestern Union Packet Co. V.
Ins. Co., 12 Wall. (20:463).

70 Ex parte Ralston, 119 U. S. 613-615 (30:506).

71 U. S. Rev. Stat. sec. 999. 72 Butler v. Gage, 138 U. S. 52–61 (34:869); Havnor v. New York, 170 U. S. 408-411 (42:1087); Bartemeyer v. Iowa, 14 Wall. 26-28 (20: 792).

such authority, and it has been the prevailing custom from the beginning for the elerk of the federal supreme court, or of the United States circuit court for the proper district to issue the writ, and for such writ to be lodged with the clerk of the state court whose judgment is complained of and sought to be reviewed. It has, however, never been held that the signature of the clerk of the state court was fatal to the writ, and such irregularities have been allowed to be corrected by amendment after the return of the writ.73

§ 445. Form and requisites of the writ of error. The writ of error is the writ of the supreme court of the United States, and bears teste of the chief justice of the United States, or, when that office is vacant, of the associate justice next in precedence, from the day of its issuance, and runs in the name of "The President of the United States," and is directed to the judges of the state court whose judgment is complained of and sought to be re-examined, and commands them to send under the seal of their court the record and proceedings in the cause, together with the writ, to the supreme court of the United States, within thirty days from the date of the writ."

§ 446. Service and return of the writ of error.—The writ of error is served by depositing a copy or the original with the clerk of the court to whose judges it is directed; and it is this filing of the writ with the clerk that removes the record from the inferior to the appellate court.75 As to the return of the writ, the federal statute provides that: "There shall be annexed to and returned with any writ of error for the removal

73 Texas & Pacific Ry. Co. v. Kirk, 111 U. S. 486-487 (28:481); Miller v. Texas, 153 U. S. 535-539 (38:812); Ex parte Ralston, 119 U. S. 613 (30:506); McDonough v. Millaudon, 3 How. 693 (11:787); U. S. Rev. Stat. secs. 1003, 1004; Buel v. Van Ness, 8 Wheat. 320 (5:626).

74 U. S. Rev. Stat. secs. 911, 912, 1003, 1004, 4 Fed. Stat. Anno. 560, 561, 616; Bondurant v. Watson, 103 U. S. 270-280 (26:447); Texas & Pacific Ry. Co. v. Kirk, 111 U. S. 486-487 (28:481); Supreme Court

Rule VIII; U. S. Rev. Stat. sec. 997, 4 Fed. Stat. Anno. 605; and see form of writ transmitted by the clerk of the supreme court to the clerks of the circuit courts, under authority of the act of May 8, 1792, ch. 36, sec. 9, now section 1004 U. S. Rev. Stat. in 2 Bates Fed. Eq. Proc. pp. 1275, 1276.

75 Ableman v. Booth, 21 How. 506 (16:169); Mussina v. Cavazos, 6 Wall. 355-363 (18:810); Davidson v. Lanier, 4 Wall. 447; Wood v. Lide, 4 Cranch, 180.

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of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party;' and a supreme court rule provides that, "the clerk of the court to which any writ of error may be directed shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court."' 77

§ 447. Same-When clerk of state court refuses to make return. In a great case where the federal supreme court issued its writ of error to a state court to review one of its judgments, the state court ordered their clerk to disegard and refuse obedience to the writ, and to make no return thereto, which order the clerk obeyed; and upon proof by affidavit of the service of the writ, and an order upon the clerk to make return, and proof of the service of the order, and continued disobedience of the writ, the supreme court permitted a certified copy of the record of the state court produced with the application for the writ of error to be filed and to be received. and entered on the docket of the court, and to have the same effect and legal operation as if returned by the clerk with the writ of error, and that the case stand for argument at the next ensuing term of the court, without further notice to either party, the citation having been duly served.78

§ 448. The writ of error may be amended.-By the rule of the common law, a writ of error could not be amended, but by an English statute it was provided that "all writs of error, wherein there shall be any variance from the original record, or other defect, may and shall be amended, and made agreeable to such record, by the respective courts where such writs of error shall be made returnable," " and such was the rule for a long time in the federal supreme court;80 but that has been remedied by a federal statute, which provides as follows: "The supreme court may, at any time, in its discretion, and

76 U. S. Rev. Stat. sec. 997.

77 U. S. Supreme Court Rule VIII, sec. 1.

78 Ableman v. Booth, 1 How. 506526 (16:169).

70 2 Tidd's Practice (1807) 1093; act 5, George I, ch. 13.

80 Ins. Co. v. Mordecai, 21 How. 195; Porter v. Foley, 21 How. 393; Carroll v. Dorsey, 20 How. 204; Hodge v. Williams, 22 How. 87; Wilson v. Life Ins. Co., 12 Pet. 140; Deneale v. Archer, 8 Pet. 526; Davenport v. Fletcher, 16 How.

upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal of the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issuance of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form: Provided, the defect has not prejudiced, and the amendment will not injure the defendant in error." 81 Under this statute, the right of a party to amend a writ of error is not absolute, but leave to amend is to be granted by the court in its discretion, and whether it should be granted in any particular case must depend upon the attending circumstances. Under this statute, the supreme court has allowed a writ of error amended, which bore a wrong teste and seal; 83 which contained a wrong return day; 8 which contained no return day at all; 95 which described either party by the name of a partnership, and not by the names of the individuals composing it; se which gave the christian name of the plaintiff below as Henry, when, as appeared from the record, it should have been George; 87 which named only one defendant in error, when there were more.88

86

82

But these adjudications establish the rule that the amendment rests in the discretion of the court, and will not be allowed if there is danger of prejudice to the adverse party, or if there is any good reason against it, as, for instance, that the

142; Miller v. McKenzie, 10 Wall. 582; Mussina v. Cavazos, 6 Wall. 355; Moulder v. Forest, 154 U. S. 567.

81 17 U. S. Stat. at L. ch. 255, p. 196 (act June 1, 1872); U. S. Rev. Stat. sec. 1005; 4 Fed. Stat. Anno. 617.

82 Pearson v. Yewdall, 96 U. S. 94-296 (24:436); Walton v. Marietta Co., 157 U. S. 347 (39:727).

83 Texas & Pacific Ry. Co. v. Kirk, 111 U. S. 486 (28:481).

84 Hampton v. Rouse, 15 Wall. 684 (21:20); Semmes v. United States, 91 U. S. 21 (23:193); National Bank of Commerce of St.

Louis v. National Bank of Commerce of New York, 99 U. S. 608 (25:362).

85 Atherton v. Fowler, 91 U. S. 143 (23:265); Evans v. Brown, 109 U. S. 180 (27:898).

86 Moore v. Simonds, 100 U. S. 145 (25:590); Gimble v. Pitkin, 113 U. S. 545 (28:1128); Estes v. Trabue, 128 U. S. 225 (32:437); United States v. Schoverling, 146 U. S. 76 (36:893).

87 Pacific Nat. Bank of Boston v. Mixter, 114 U. S. 463 (29:221). 88 Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 339 (29:432).

main question presented by the record has been often decided by the court adversely to the claims of the plaintiff in error.89

§ 449. Supersedeas upon writ of error.-A statutory remedy. At the common law, a writ of error issued before an execution was executed was a supersedeas by implication without bond; 90 but, under the federal judicial system, the remedy by supersedeas is purely a statutory remedy, and is obtainable by a strict compliance with all the required conditions, none of which can be dispensed with, and time is an essential element in the proceeding, and one which neither the court nor the judges can disregard, and if a delay beyond the limited time occurs, the right to the remedy is gone, and the successful party holds his judgment or decree freed and discharged from supersedeas as a means of staying the proceedings for its collection and enforcement.91 In order to avoid the common-law rule, and to better protect the rights of litigants, it has been enacted by congress as follows:

"In any cases where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclusive, after the rendition of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served the writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, executions shall not issue until the expiration of ten days." 92 A justice of the supreme court has no power to allow a supersedeas in cases where no appeal or writ of error was sued out and served within sixty days, exclusive of Sundays, after the rendition of the decree or judgment complained of; 93 and to make a nunc pro tunc order for a supersedeas effectual, it must appear that

89 Walton v. Marietta Co., 157 U. S. 342-348 (39:725).

90 Tidd's Practice (1807) 1072. 91 Kitchen v. Randolph, 93 U. S. 86-92 (23:810); Sage v. Cent. Ry. Co., 93 U. S. 412-420 (23:933).

92 U. S. Rev. Stat. sec. 1007; 4 Fed. Stat. Anno. 618.

93 Kitchen v. Randolph, 93 U. S. 86-92 (23:810).

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