Warner v. Texas & P. Ry. Co.

• Decision Date: 30 January 1893
• Docket Number: 96.
• Citation: 54 F. 920
• Parties: WARNER v. TEXAS & P. RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

54 F. 920

WARNER v. TEXAS & P. RY. CO.

No. 96.

United States Court of Appeals, Fifth Circuit.

January 30, 1893

H Chilton, for plaintiff in error.

Wm Wirt Howe and T. J. Freeman, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District judge.

McCORMICK Circuit Judge.

The judgment to review which this writ of error was sued out was rendered on 11th of May, 1892. On August 29, 1892, the petition for the writ of error was presented to the judge of the circuit court who had presided in said court when said judgment was rendered, and was allowed by him in these terms 'The above petition for writ of error is hereby allowed. August 29, 1892. David E. Bryant, District Judge Eastern District of Texas;' and said petition, with said allowance written on it, and so signed by the judge, was filed in the said circuit court on August 31, 1892, and on the same day a writ of error in the prescribed form, duly signed and tested by the clerk of said circuit court, and sealed, but wanting the signature of the judge to the customary printed memorandum 'allowed by,' as shown in the form of such writs in common use, was filed by the clerk in said circuit court. On November 9, 1892, counsel for plaintiff in error, on the street in the town of Tyler, Tex., where said circuit court rendering said judgment had held its session, and where its records are kept and where a deputy clerk of said court resides, handed said deputy clerk the bond for writ of error shown in the record, and requested said deputy clerk to make inquiry as to the solvency of the sureties, and to forward the bond and the writ of error and the citation in error to the judge, to be respectively approved, allowed, and signed by him. Some delay was incurred in making the requested inquiry, and when the papers were sent to the judge he signed the memorandum of the allowance of the writ and the approval of the bond without showing the date of the allowance of the writ or of the approval of the bond, and returned them to the said clerk by mail, accompanied by a letter dated November 16, 1892, which the clerk received 17th of November, 1892, and thereupon said clerk erased the date originally written in said writ, and the date originally indorsed on it, showing that it was issued and filed August 31, 1892, and inserted November 16, 1892, as the date of issuing said writ, and November 17, 1892, as the date of filing.

The policy of the law in the creation of this court shows marked liberality in allowing appeals from trial courts in all cases, and, on the other hand, requires a speedy prosecution of all appeals or writs of error. It is no part of the clerk's duty as clerk to procure the allowance of writs of error, and the approval of bonds for appeals or writs of error. This is the office of parties, or of their attorneys and solicitors. It is also clearly...