Texas Pac Ry Co v. Kirk

• Decision Date: 21 April 1884
• Citation: Texas Pac Ry Co v. Kirk, 111 U.S. 486, 4 S.Ct. 500, 28 L.Ed. 481 (1884)
• Parties: TEXAS PAC. RY. CO. v. KIRK
• Court: U.S. Supreme Court

111 U.S. 486

4 S.Ct. 500

28 L.Ed. 481

TEXAS PAC. RY. CO. v. KIRK.

April 21, 1884.

W. Hallett Phillips and A. H. Garland, for motion.

John F. Dillon, Wager Swayne, John C. Brown, and W. D. Davidge, in opposition.

WAITE, C. J.

The defendant in error moves to dismiss this case for want of a sufficient writ of error, and with this motion is united one to affirm, under section 5 of rule 6. The plaintiff in error moves for leave to amend the writ. In our opinion the motion to amend should be granted. The writ is in every respect in accordance with the form transmitted by the clerk of this court to the clerks of the circuit courts, under the authority of the act of May 8, 1792, c. 36, § 9, now section 1004 of the Revised Statutes, except that it is made returnable on a wrong day, bears the teste of the chief justice of the supreme court of Texas, and is signed by the chief justice and the clerk, and sealed with the seal of that court. It commands the justices of the supreme court of Texas, in the name of the president of the United States, to transmi to this court for review their record and proceedings in a certain suit, which is properly described, and the return has been made and the cause duly docketed here.

In Bondurant v. Watson, 103 U.S. 278, relied on in support of the motion to dismiss, the writ did not purport to be issued in the name of the president, or under the authority of the United States. It was in reality nothing more than an order of the supreme court of Louisiana to its clerk to transmit the record and proceedings of that court in a certain cause to this court for review.

By section 1005 of the Revised Statutes, we are authorized to allow an amendment of a...