The Insurance Company of the Valley of Virginia, Plaintiffs In Error v. Moses Mordecai

• Citation: 16 L.Ed. 94,21 How. 195,62 U.S. 195
• Parties: THE INSURANCE COMPANY OF THE VALLEY OF VIRGINIA, PLAINTIFFS IN ERROR, v. MOSES C. MORDECAI
• Decision Date: 01 December 1858
• Court: United States Supreme Court

62 U.S. 195

21 How. 195

16 L.Ed. 94

THE INSURANCE COMPANY OF THE VALLEY OF VIRGINIA, PLAINTIFFS IN ERROR, v. MOSES C. MORDECAI.

December Term, 1858

THIS case was brought up by writ of error from the Circuit Court of the United States for the western district of Virginia.

It was an action of debt, brought by Mordecai, (a citizen of South Carolina,) upon a judgment which he had obtained against the insurance company, in the Circuit Court of the United States for the district of South Carolina. A judgment was given also for Mordecai in the Circuit Court of Virginia, from which the insurance company sued out a writ of error in October, 1858, which was made returnable to this court on the 'second Monday in January next,' (being the second Monday in January, 1859.)

Mr. Phillips moved to dismiss the writ of error, on the ground that the writ was not made returnable according to law, and in support of the motion gave the following reasons:

The English rules with regard to the return day of a writ of error are——

In the King's Bench it is returnable ubicumque, &c., on the first or last general return of the term.

In the Exchequer Chamber it is returnable before the justices of the Common Bench, &c., on a particular return day.

In the House of Lords, when the Parliament is sitting, the writ is made returnable before the King in his present Parliament, immediate. After a prorogation, the writ is returnable at the next session; or after a dissolution, at the next Parliament, specifying the day when it is to be holden.

By the act of 24th September, 1789, the court was directed to hold two sessions, the one commencing the first Monday in February, and the other, first Monday in August. The sessions of the court were subsequently changed by statute to be the second Monday in January, and then to the second Monday in December.

While the statute gives the commencement of a term, it does not regulate its duration. The court may sit several months or one month. If, therefore, a writ of error is not made returnable to the first day of the session, it may so happen that the record would be sent up on a day when the court is not in session.

It is true that the acts of Congress do not determine the day of return; this was left to be determined by the court, under the power given to regulate its process.

Under the act of the 3d May, 1792, it was made the duty of the clerk of this court, with the approval of two of the judges, to prepare the form of a writ of error. This was done, and the writ then made out undoubtedly made it returnable to the first Monday of the court. The clerk informs me that at each succeeding change of the terms, new blanks have been prepared, in which the return day was stated to be the first of the term. Not only is the act silent as to the day of the return, but it is equally so as to the term. Yet this court has in two cases dismissed a writ of error when a term had intervened. (Hamilton v. Moore, 3 Dal., 371; Blair v. Miller, 4 Dal., 21.)

While no rule of the court specifically declares that the writ shall be made returnable to the first day of the term, the 43d rule, adopted in 1835, declares that, when the judgment or decree is rendered thirty days before the term, the cause shall be docketed and the record filed within the first six days of the term. This is wholly inconsistent with the idea that a writ of error on such a judgment could be made returnable at a subsequent period.

AMENDMENT.—At common law, writs of error were not amendable. (1 Arch. Drac., 214.) This was afterwards regulated by stat. of 1 Geo. I.

The 32d section of the judiciary act, though writs of error are not named, may be understood to confer a similar authority.

It may be, therefore, that leave to amend will be granted when there is anything to amend by. This was the case in 4 Dal., 12.

In this case there is nothing to amend by.

The motion was opposed by Mr. Robinson, upon the following grounds:

1. Under section 22 of the act of Congress establishing the judicial courts of the United States, a writ of error issued by the clerk of the Supreme Court is to be returnable at a certain day and place therein mentioned, but that day need not be the first day of the next term.

The form of a writ of error is given in Curtis's Digest, p. 599. It is made returnable to 'the _____ Monday of _____ next.' It may be that, in most cases, it is now made returnable to the first Monday in December, and that formerly, when the term commenced the second Monday in January, it was in most cases made returnable to that day. This, however, is not because of any necessity to make it returnable to the first day of the term, but because that, in most cases, is a convenient day.

It would be of no avail to make it so returnable when there is not, between the day on which the writ of error issues and the first day of the next term, time to give the adverse party the twenty or thirty days notice required by the act of Congress.

Nor will it do to say that, during the twenty or thirty days next preceding the commencement of a term, no writ of error is to issue; for that would make it impossible ever to obtain under section 23 a supersedeas to a judgment rendered within those twenty or thirty days.

Judge Curtis observes that the citation 'may be made returnable in term, and on such a day of the term as will enable the plaintiff in error to have it served on the adverse party thirty days before its return day.' This is entirely correct. And there is but a slight inaccuracy in the language which follows, to wit: that 'if this can be done thirty days before the first day of the next term, it should be made returnable on that day.' No doubt that, in such case, it may be made so returnable. But, in the nature of things, it is, at the time of issuing the writ, impossible to know whether the writ can be served thirty days before the first day of the next term. It is therefore proper that there should be room for some exercise of discretion on the subject, and that the writ should be made returnable to some day of the next term sufficiently distant to make it probable that there can, before that day, be the twenty or thirty days notice.

In this very case it was, at the time the writ of error issued, exceedingly doubtful whether, in the very short time that remained, it would be practicable to serve the writ of error under section 23, by lodging a copy thereof in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment. And if the twenty days notice could not be given in this way, it was, at the time the writ issued, far from being certain that there would, before the first day of the next term, be sufficient time to give that notice in any other way. It was therefore proper to make the writ returnable to some convenient day beyond the first day of the next term; and the second Monday in January was such convenient day.

2. Under the act...