Cotter v. Alabama G. S. R. Co.

• Decision Date: 08 May 1894
• Docket Number: 149.
• Citation: 61 F. 747
• Parties: COTTER v. ALABAMA G.S.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

61 F. 747

COTTER v. ALABAMA G.S.R. CO.

No. 149.

United States Court of Appeals, Sixth Circuit.

May 8, 1894

C Marchbanks, for plaintiff in error.

Edward Colston and Lewis Shepherd, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and BARR, District Judge.

LURTON Circuit Judge.

This cause came on first to be heard upon the motion of the appellee to strike the case from the docket for the want of a writ of error, and the motion of the appellant to be allowed to amend the writ of error by having the seal of the court placed thereon.

This court can have no jurisdiction to review a cause decided in the circuit court unless it has been brought here in substantial conformity to some act of congress. Castro v U.S., 3 Wall. 46. A writ of error has been defined by the supreme court, speaking through Chief Justice Marshall as 'a commission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and on such examination to affirm or reverse the same according to law. ' Cohens v Virginia, 6 Wheat. 409. Congress has provided, by the act of March 3, 1891 (sections 6, 11), for the review of causes decided in existing circuit and district courts by this court by appeal, or by writ of error. The latter section, after referring to the time within which such review may be had, provides that 'all provisions of law now in force regulating the methods and system of review through appeals or writs of error, shall regulate the method and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and write of error. ' It follows that under the act just cited writs of error from this court to circuit and district courts are sued out under the same practice and regulation as in cases of writs from the supreme court. It is also obvious that the power conferred upon the supreme court by section 1005, Rev. St., concerning the amendment of defective writs in matters of form, is likewise conferred upon this court with respect to writs of error, issuing from this court.

Prior to 1791 it was the practice that a writ of error could only issue from the office of the clerk of the supreme court. In Mussina v. Cavazos, 6 Wall. 355, it is slated that a decision to that effect in West v. Barnes (in 1791) 2 Dall. 401, led to the enactment of the ninth section of the act of 1792, being section 1004 of the Revised Statutes. That section is as follows:

'Sec. 1004. Writs of error returnable to the supreme court may be issued as well by the clerks of the circuit courts, under the seals thereof, as by the clerk of the supreme court. When so issued, they shall be, as nearly as each case may admit, agreeable to the form of writ of error transmitted to the clerks of the several circuit courts by the clerk of the supreme court, in pursuance of section nine of the act of May eight, seventeen hundred and ninety-two, chapter thirty-six.'

Since that act the writ may issue by the clerks of the circuit or district courts, under the seals of their respective courts. That the writ shall be under seal is as essential now as before. As observed by Mr. Justice Miller, in regard to writs so issued by clerks of such courts:

'Such writ is in form and fact the process of this court, directed to the judges of the circuit court, commanding them to return with said writ, into this court, a transcript of the record of the case mentioned in the writ. When deposited with the clerk of the court, to whose judge it is directed, it is served; and the transcript which the clerk sends here is the return to the writ, and should be accompanied by it. ' Mussina v. Cavazos, 6 Wall. 355.

The writ of error allowed in this case is not attached to the transcript, nor made a part of the record. It was, however, returned to this court on the day the transcript was filed here, indorsed as executed, by sending the transcript to this court as commanded. We think the mere fact that it was not returned attached to the transcript does not render it void, inasmuch as it has performed its function, and may be now attached to the record sent here, as should have been done in the first instance. Its actual issuance and service, it being in form a colorable command in the form required by the statute, have operated to give this court jurisdiction, and under section 1005 we may amend it in all matters of formal defect. Its operation as a writ of error is not defeated by the mere failure of the clerk to send up the transcript 'accompanied by it.'

In the case of Mussina v. Cavazos, cited above, the writ never was returned. It was issued and served. The transcript was sent up unaccompanied by the writ, because it was accidentally destroyed before the record was made out. Concerning an objection to the jurisdiction because the original writ had not been returned as required by section 1004, the court said:

'It fully appears that during the life of the writ a good and sufficient return to it was made by sending to this court an authenticated transcript of the record. Shall we now hold, because with this return there did not come the writ itself, that what has been done under it is void, and we are without jurisdiction? This would be contrary to the uniform practice of other courts in regard to their writs, for it is believed to be well settled that rights acquired under a valid writ of process, while it was in force, cannot be defeated by the loss or destruction of the writ, if its existence, and the acts done under it, can be substantiated by other testimony. It is as reasonable to hold that a judge of this court would lose his right to sit in this place if his commission was burned up as to hold that the court loses the right to hear a case because the writ was burned before it reached the court, but after it had effected its purpose, by bringing here the transcript.'

Another objection made is that the writ has no seal. Prior to the enactment of section 1005, Rev. St., this would be a fatal objection to its validity and to the exercise of any jurisdiction over the case by this court. Overton v. Cheek, 22 How. 46. That section is in these words:

'Sec. 1005. The supreme court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the test of the writ, or a seal to the writ is wanting, or when a writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue 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.'

That section is from the act of June 1, 1872.

The cases cited by the learned counsel, of Insurance Co. v Mordecia, 21 How. 195, and Hodge v. Williams, 22 How. 87, were decided before that act, and doubtless led to its passage. The power to permit the amendment of a defective writ conferred by that provision is very liberal. Neither is it fatal that more than six months have passed since the final decree sought to be reviewed was pronounced. The statute allows the amendment 'at any time,' in the discretion...