Polleys v. Black River Imp Co

• Citation: 113 U.S. 81,5 S.Ct. 369,28 L.Ed. 938
• Parties: POLLEYS and others v. BLACK RIVER IMP. CO
• Decision Date: 12 January 1885
• Court: United States Supreme Court

113 U.S. 81

5 S.Ct. 369

28 L.Ed. 938

POLLEYS and others v. BLACK RIVER IMP. CO.

January 12, 1885.

S. U. Pinney, for motion.

M. P. Wing and I. C. Sloan, against motion.

MILLER, J.

This is a writ of error to the circuit court of Wisconsin for the county of La Crosse, and a motion is made to dismiss it. The first ground of the motion is that the writ should have been directed to the supreme court of the state, and cannot be rightfully directed to the circuit court of the county. It appears that the defendant in error here was plaintiff in the circuit court of La Cross county, and brought its action against Polleys and others for relief in regard to their obstructing the navigation of Black river and its branches. The circuit court denied the relief and dismissed the bill. On appeal, the supreme court of the state reversed this judgment and delivered an opinion that plaintiff was entitled to relief in the premises; and it made an order remanding the case to the circuit court, with directions 'to enter judgment in accordance with the opinion of this (that) court.' It appears by the cases cited to us, and by the course of proceedings in such cases in the Wisconsin courts, that the record itself is remitted to the inferior court, and does not, nor does a copy of it, remain in the supreme court. Though the judgment in the circuit court was the judgment which the supreme court ordered it to enter, and was in effect the judgment of the supreme court, it is the only final judgment in the case, and the record of it can be found nowhere else but in the circuit court of La Crosse county. To that court, therefore, according to many decisions of this court, the writ of error was properly directed to bring the record here for review. Gelston v. Hogt, 3 Wheat. 246; Atherton v. Fowler, 91 U. S. 146.

It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that 'no judgment, decree, or order of a circuit or district court, in any civil action at law, or in equity, shall be reviewed in the supreme court, on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order.' This rule is applicable to writs of error to the state courts in like manner as to circuit courts. Scarborough v. Pargoud, 108 U. S. 567; S. C. 2 SUP. CT. REP. 877. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said 'that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress must be calculated accordingly.' This...