Burnham v. North Chicago St. Ry. Co.

• Decision Date: 13 May 1898
• Docket Number: 470.
• Citation: 87 F. 168
• Parties: BURNHAM et al. v. NORTH CHICAGO ST. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

87 F. 168

BURNHAM et al. v. NORTH CHICAGO ST. RY. CO.

No. 470.

United States Court of Appeals, Seventh Circuit.

May 13, 1898

John A Rose, for plaintiffs in error.

A. D Wheeler, for defendant in error.

Before WOODS and SHOWALTER, Circuit Judges, and BUNN, District Judge.

WOODS Circuit Judge.

The motion to dismiss is on the ground that this court is without jurisdiction-- first, because the supposed writ of error issued herein has never been filed in the circuit court second, because no return has been made by the clerk of the circuit court to the supposed writ of error; third, because the supposed writ of error did not issue under the seal of any court; fourth, because the clerk of the circuit court, to the judges of which the supposed writ was directed, has never made return to the writ by returning with the same to this court an authenticated transcript of the record of the cause filed in this court, and nothing which purports to be such record or a transcript thereof. In support of the motion is offered a certified copy of docket entries, showing the taxation of costs in the case, including the filing of the petition for and the issuing, but not including the filing of the writ of error. In answer to the motion it is satisfactorily shown that a writ of error in proper form was duly issued by the clerk of the circuit court under the seal of that court, and that the writ, with a copy thereof for the defendant in error, was returned to the clerk for filing, and was by him placed on file in the case, but without any notation of the filing, and remained on file until by mistake it was delivered to the attorney for the defendant in error, the copy intended for that use being attached to the transcript and transmitted to this court. The original writ, which afterwards was returned to the clerk, and the citation, with an acknowledgment of service indorsed thereon, both certified by the clerk, the plaintiffs in error have produced here, and have moved that they be made or recognized as a part of the record; and have also moved, under section 1005 of the Revised Statutes of the United States, that the writ of error sent up with the transcript be sealed with the seal of this court.

The objections urged to the jurisdiction of this court are not essentially new, and in none of them is there tenable ground for the denial of jurisdiction. Mussina v. Cavazos, 6 Wall 355; Redfield v. Parks, 130 U.S. 623, 9 Sup.Ct. 642; Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 258, 9 Sup.Ct. 107; Texas & P. Ry. Co. v Kirk, 111 U.S. 486, 4 Sup.Ct. 500; Cotter's Adm'r v. Railroad Co., 22 U.S.App. 372, 10 C.C.A. 35, and 61 F. 747. In Mussina v. Cavazos the writ of error had been destroyed before it reached the supreme court, but, 'taking a copy of the writ found in the record to be a true copy,' the court considered it 'established that a writ of error was issued and served,' and denied the motion to dismiss for want of jurisdiction. The original writ in this case has been produced, and is unobjectionable in form and substance; but, if...