Mussina v. Cavazos

Decision Date01 December 1867
Citation73 U.S. 355,6 Wall. 355,18 L.Ed. 810
PartiesMUSSINA v. CAVAZOS
CourtU.S. Supreme Court

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 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 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 is equally applicable to a writ of error; for the act of 1803, which first authorized appeals, subjects them to the rules and regulationsw hich govern writs of error. The ground of that decision, and also of the case of Villabolos v. United States, which preceded it, is the general principle, that all writs, which have not been served, and under which nothing has been done, expire on the day to which they are made returnable. They no longer confer any authority; an attempt to act under them is a nullity, and new writs are necessary, if the party wishes to proceed. Hence we have the alias writ, and others in numerical succession indefinitely.

It is now insisted, upon the authority of these cases, and of the language of the twenty-second section of the Judiciary Act, that the absence of the original writ in the case deprives this court of the power to decide it. It is said that, by force of the words 'returned therewith,' contained in this twenty-second section, it is made essential to our jurisdiction that the original writ and the transcript must both be returned.

If this be a sound construction, then it is equally necessary that there shall be returned, at the same time, an assignment of errors, a prayer for the reversal of the judgment, and a citation to the adverse party. But an examination of all the records of cases decided in this court will show that, in four cases out of five, there has been neither an assignment of errors, nor any prayer for reversal. We have also held, frequently, that if the appeal is taken in the open court, during the term at which it was rendered, in the presence of the appellee, no citation is necessary, and that a general appearance in this court for defendant in error, or in appeal, waives the necessity of a citation.

The act referred to also says, that all these things must be returned together at the 'time and place mentioned in the writ,' that is to say, on the first day of the term next after the issuing of the writ. Yet we have repeatedly held, that if returned on any day during that term, we will hear and decide the cause. It cannot, therefore, be maintained, that a rigid and literal fulfilment of everything prescribed in that section, is an absolute and indispensable requisite to the appellate jurisdiction of this court.

Nor does the case come within the principle which we have already stated as governing the cases of Villabolos v. United States, and Castro v. United States. In these cases the appeals were dismissed, because no returns of the transcripts to this court were made, until by analogy to the writ of error, the time for making such returns had passed and the writs, if writs had been issued, would have become functus officio. In the case before us, on the contrary, it fully appears that during the life of the writ, a good and sufficient return to it was made, by...

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    ...Generes v. Campbell, 11 Wall. 193, 198, 20 L.Ed. 110; Herbert v. Butler, 97 U.S. 319, 320, 24 L.Ed. 958. Compare Mussina v. Cavazos, 6 Wall. 355, 363, 18 L.Ed. 810; Young v. Martin, 8 Wall. 354, 357, 19 L.Ed. 418. The Act of June 1, 1872, c. 255, § 4 (17 Stat. 197, R.S. § 953) expressly dis......
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    ...6 L. ed. 508; Owings v. Kincannon, 7 Pet. 399, 8 L. ed. 727; Wilson v. Life & F. Ins. Co. 12 Pet. 140, 9 L. ed. 1032; Mussina v Cavazos, 6 Wall. 355, 18 L. ed. 810; Masterson v. Herndon (Masterson v. Howard) 10 Wall. 416, 19 L. ed. 953; Hampton v. Rouse, 13 Wall. 187, 20 L. ed. 593; Simpson......
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    ...names. Deneale v. Archer, 8 Pet. 526; Heirs of Wilson v. Insurance Co., 12 Pet. 140; Davenport v. Fletcher, 16 How. 142; Mussina v. Cavazos, 6 Wall. 355, 361, 362; Miller v. McKenzie, 10 Wall. 582; The Protector, 11 Wall. 82. As, however, the record discloses the names of the individuals wh......
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