Mussina v. Cavazos

• Court: United States Supreme Court
• Writing for the Court: MILLER
• Citation: 73 U.S. 355,6 Wall. 355,18 L.Ed. 810
• Decision Date: 01 December 1867
• Parties: MUSSINA v. CAVAZOS

73 U.S. 355 18 L.Ed. 810 6 Wall. 355 MUSSINA v. CAVAZOS. December Term, 1867

Page 356

MOTION to dismiss a writ of error to the District Court for the Eastern District of Texas; the case being thus:

The twenty-second section of the Judiciary Act provides that

'Judgments and decrees of the District Courts may be re-examined, and affirmed or reversed in a Circuit Court, upon a writ of error, whereto shall be annexed and returned therewith, 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, &c. And upon like process may judgment in the Circuit Courts be re-examined in the Supreme Court.'

In this case there was only a copy of the writ annexed to the transcript; but the plaintiff in error had filed an affidavit by which it appeared that during the late civil war, the records of the court had been almost entirely burnt up, and he swore that, as he verily believed, there were none of the original papers of the cause now in existence. Assuming the copy of the writ of error thus returned with the transcript to have been a true copy, then the clerk had made his writ to run thus:

'Because in the record and proceedings, as also in the rendition of judgment of a plea which is in said District Court before you, in which Simon Mussina is plaintiff in error and Maria Josefa Cavazos and Estefana Goascochea de Cortina are defendants in error, manifest error hath happened to the great damage of the said Simon Mussina,' &c.

The writ, it will be observed, did not say who was plaintiff below and who there defendants; though the description of the parties, as they appeared in this court, was correct. The petii on for the writ of effor, as contained in the transcript of the record, describes the parties thus:

'In a certain cause wherein Maria Josefa Cavazos and Estefana

Page 357

Goascochea de Cortina were plaintiffs and Simon Mussina defendant, a final judgment was rendered,' &c.

The bond given by plaintiff in error described the parties in the same manner.

Messrs. Robinson and Hale rested their motion to dismiss on the ground, 1st, that the twenty-second section of the Judiciary Act above quoted made it indispensable to the jurisdiction of this court that the writ of error itself annexed to the transcript, should be 'returned therewith;' that here the writ of error was not returned, relying in support of their view on this point upon Castro v. United States,¹ and the previous case of Villabolos v. Same;² and 2d, that admitting that a copy might be substituted for the writ, and that the copy here was a true one, the parties to the suit had been fatally misdescribed in the original.

Messrs, Sherwood and Edmunds, contra.

Mr. Justice MILLER delivered the opinion of the court.

We are of opinion that the original writ should always be returned to this court with the transcript of the record. The writ of error is the writ of this court, and not of the Circuit Court, whose clerk may actually issue it. The early practice was, that it could only issue from the office of the clerk of the Supreme Court, and in the case of West v. Barnes,³ at the August term, 1791, it was so decided. This decision led to the enactment of the ninth section of the act of 1792,⁴ by which it was provided that the clerk of the Supreme Court, assisted by any two justices of said court, should prescribe the form of a writ of error, copies of which should be forwarded to the clerks of the Circuit Courts; and that such writs might be issued by these clerks, under the seals of their respective courts. The form of the writ provided under this act has been in use ever since. It runs in the name of the President, and bears the teste of the chief justice of

Page 358

this court. It is in form and in 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 judges 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.

In the case before us, the plaintiff in error, by way of substitute for a writ of certiorari, has filed an affidavit, from which it appears, that, without his fault, the writ has been destroyed by burning, during the late civil war. Taking the copy of the writ found in the record to be a true copy, it may be considered as established, that a writ of error was issued and served, and that a transcript of the record, with a copy of the writ, was returned and filed in this court, before the first day of the next term after it was issued, and that the original writ is destroyed.

We have repeatedly held that the writ of error in cases at law is essential to the exercise of the appellate jurisdiction of this court. And it is undoubtedly true that this court has gone very far in requiring strict compliance with the acts of Congress under which cases are transferred from inferior tribunals to this court.

In the case of Castro v. United States, we held, on consideration of the previous cases, and on principle, that unless the transcript from the court below was returned before the end of the term next succeeding the allowance of the appeal, this court had no jurisdiction. Although the question there arose on an appeal, the principle decided...