CHAPTER VI.

PRACTICE OF THE SUPREME COURT OF THE UNITED STATES IN WRITS OF ERROR.

§ 358. A WRIT of error being the process by which the record of an inferior court, in an action at law, is removed into an appellate court, for a re-examination of the grounds. of the judgment, so far as they involve matters of law, we are first to state the mode in which that process is issued to the circuit courts of the United States, and to the state courts, under the twenty-second and twenty-fifth sections of the Judiciary Act, and the proceedings which follow thereon.

§ 359. The twenty-second section of the Judiciary Act provides that final judgments of the circuit courts, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, may be re-examined, and reversed or affirmed in the Supreme Court, by a writ of error brought within five years after the judgment was rendered, 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 prayer for reversal, with a citation to the adverse party, signed by a judge of the circuit court, or justice of the Supreme Court, and the adverse party having at least thirty days' notice. The twenty-fifth section makes the same provisions with respect to writs of error to certain judgments or decrees of state courts, except that the citation is to be signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree com

plained of, or by a justice of the Supreme Court of the United States.1

§ 360. The period of five years, within which the writ of error is to be brought, is to be calculated from the time of rendering the judgment to the day when the writ is filed in the court where the judgment was rendered. The day on which the writ of error is issued, or the day on which it is tested, are not material; but if the day on which it is filed. be more than five years from the date of the entering of the judgment, the statute limitation of time is passed, and the writ is barred.2

115.

Mr. Chief Justice Taney, case, said: "This case is

As to the judgments of state courts subject to being re-examined in the Supreme Court of the United States, see 2 Brooks v. Norris, 11 Howard, 204, 207. delivering the opinion of the court in this brought here by writ of error upon a judgment rendered in the Supreme Court of the State of Louisiana, and a motion has been made to dismiss the writ.

"It appears by the record that the judgment was rendered on the 25th of October, 1843. The writ of error, by which the case is brought here was allowed by the chief justice of the state court, upon the petition of the appellant, on the 19th of October, 1848, and the bond also bears date on that day. But the writ of error was not issued until the 4th of November following. It was issued by the clerk of the court, in which the judgment was rendered, and, on the same day, as appears by endorsement upon it, filed in that office by the counsel for the plaintiff in error. More than five years from the day of the judgment had, therefore, elapsed when this writ of error was filed.

"The Act of 1789, chap. 20, 22, provides that writs of error shall not be brought but within five years after rendering or passing the judg ment or decree complained of. 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. The day on which the writ may have been issued by the clerk, or the day on which it is tested, are not material in deciding the question.

"In this case, therefore, five years had elapsed before the writ of error was brought, and the limitation of time in the Act of Congress was a bar to the writ. According to the English practice, the defendant in error

§ 361. As to the parties to a writ of error, it is to be observed, in the first place, that as the object of this process is to bring before the appellate tribunal the judgment of the inferior court for revision, and that such judgment may be reversed, if found incorrect, the party against whom the judgment is rendered can alone sue out the writ. Strangers to the judgment, who are not parties to the record, although they may have an interest in its proceeds, cannot sue out a writ of error. Thus, where land was sold under an execution, and the money arising therefrom was about to be distributed amongst creditors, by an order of the circuit court, and a controversy arose among them as to the priority of their respective judgments, and the circuit court made an order concerning the distribution, whereupon certain of the creditors aggrieved, who were not parties to the judgment, brought a writ of error on the judgment, it was held that the judgment could not thus be re-examined.1

§ 362. And the parties against whom the judgment is rendered must all join in the writ of error, if it be a joint

must avail himself of this defence by plea. He cannot take advantage of it by motion; nor can the court judicially take notice of it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defence which the defendant in error may or may not rely upon, as he himself thinks proper. But according to the established practice of this court, he need not plead it, but may take advantage of it by motion. The forms of proceeding in the English courts of error have never been adopted or followed in this court. And either party, without any formal assignment of error or plea, may avail himself of any objection which appears upon the record itself. In this case, the bar arising from the lapse of time is apparent on the record, and the defendant may take advantage of it by motion to quash or dismiss the writ.

"As this objection is conclusive, it is unnecessary to inquire whether the writ of error was allowed or issued by proper authority, or what previous defect may be cured by the appearance of the defendant in error. The writ must be dismissed, upon the ground that it is barred by the limitation of time prescribed by the Act of Congress."

1 Bayard v. Lombard, 9 Howard, 530. See also Boyle v. Zacharie, 6 Peters, 655.

judgment, unless, on a refusal of some of them to join, the rest obtain a summons and severance. Thus, where there was a joint judgment against three defendants, and the writ of error was sued out by one of them in his own name alone, without joining the others, the court said the writ should have been in the names of all; but that if the others should refuse to join, it would deserve consideration whether the third defendant could not have a summons and severance.' But where a judgment was rendered against three defendants upon a joint and several bond of suretyship, and the judgment stated the sums for which the defendants were jointly and severally liable, and one of the defendants, who had taken a separate defence, sued out a writ of error without joining the other two, and they sued out a separate writ of error, and the plaintiffs in error in each writ gave separate appeal bonds, a motion to dismiss, upon the ground that all the defendants should have joined in one writ of error, was overruled.2

§ 363. But all the parties to the judgment must be set out in a writ of error. If a part of the plaintiffs-in-error be described as "others," without naming them, the writ will be dismissed. If the plaintiff below, in whose favor a judgment is rendered, intermarries after the judgment, and

1 Williams v. The Bank of the United States, 11 Wheaton, 414. In Owings and Others v. Kincannon, 7 Peters, 399, a joint decree was made against six defendants. An appeal was prayed generally from the decree ; but in the appeal bond, it was stated that two had prayed an appeal, and nothing was said of the others. The court considered the statement in the bond as explaining the general entry granting the appeal, and dismissed the case, because all the defendants had not joined in the appeal. See also Heirs of Wilson v. Life and Fire Insurance Co., &c., 12 Peters, 140.

2 Cox and Dick v. The United States, 6 Peters, 172.

Deneale and Others v. Archer, 8 Peters, 526; Smyth v. Strader, 12 Howard, 327. So, too, where a writ of error was issued in the name of "The Heirs of Nicholas Wilson," it was dismissed, because no person was named as plaintiff in error. Heirs of Wilson v. Life and Fire Insurance Co., 12 Peters, 140.

before the service of the writ of error, the service of the citation upon the husband has been held to be sufficient.1

§ 364. The death of parties to a writ of error to the Supreme Court of the United States affects variously the position of the cause, according to the time when such death occurs, and according to the fact of such decedent being the sole plaintiff or defendant, or only one of several. The twenty-eighth rule of the court provides that when either party shall die, pending a writ of error or appeal, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined, as in other cases. But if such representatives do not voluntarily become parties, the other party may suggest the death upon the record, and obtain an order that unless such representatives shall become parties, within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and, on hearing, have the same reversed, if it be erroneous. By a subsequent rule (sixty-one), it is provided, that, when the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term. next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate.3

2

Quere, Whether

'Fairfax's Executor v. Ann Fairfax, 5 Cranch, 19. the husband should be made a party to the writ of error? It was not done in the above case, but the citation to Ann Fairfax was served on her husband alone. The court held it to be a sufficient service on Ann Fairfax.

2 The rule also requires that the order so obtained shall be published. See Rule 27 (Feb. Term, 1821).

3 Rule 61 (Dec. Term, 1851).