87 F. 168 | 7th Cir. | 1898
The motion to dismiss is on the ground that this court is without jurisdiction — first, because the supposed writ of error issued herein has never been filed in the circuit court; second, because no return has been made by the clerk of the circuit court to the supposed writ of error; third, because the supposed writ of error did not issue under the seal of any court; fourth, because the clerk of the circuit court, to the judges of which the supposed writ was directed, has never made return to the writ by returning with the same to this court an authenticated transcript of the record of the cause; fifth, because there is no authenticated transcript of the record of the cause filed in this court, and nothing which purports to be such record or a "transcript thereof. In support of the motion is offered a certified copy of docket-entries, showing the taxation of costs in the case, including the filing of the petition for and the issuing, but not including the filing, of the writ of error. In answer to the motion it is satisfactorily shown that a writ of error in proper form was duly issued by the clerk of the circuit court under the seal of that court, and that the writ, with a copy thereof for the defendant in error,
The objections urged to the jurisdiction of this court are not esseni tally new, and in none of them is there tenable ground for the denial of jurisdiction. Mussina v. Cavazos, 6 Wall. 355; Redfield v. Parks, 130 U. S. 623, 9 Sup. Ct. 642; Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 Sup. Ct. 107; Texas & P. Ry. Co. v. Kirk. 111 U. S. 486, 4 Sup. Ct. 500; Cotter’s Adm’r v. Railroad Co., 22 U. S. App. 372, 10 C. C. A. 35, and 61 Fed. 747. In Mussina v. Cavazos (he writ of error had been destroyed before it reached the supreme court, but, “taking a copy of the writ found in the record to be a true copy,” the court considered it “established that a writ of error was issued and served,” and denied the motion to dismiss for want of jurisdiction. The original writ in this case has been produced, and is unobjectionable in form and substance; but, if that writ were wanting, and there were no proof of its existence or of its contents and form, the copy returned with, the transcript might be regarded as the original, defective only in the lack of an impression of the seal of the court, and that defect, by force of section 1005 of the Revised Statutes, enacted since Mussina v. Cavazos was decided, may be cured by an impression of the seal of this court, from which theoretically the writ issued.
The objection that the transcript is not authenticated as a full and complete transcript, but only as “a true and correct transcript from tin* filing of the mandate” issued from this court on a former appeal, does not defeat the jurisdiction, which, as the cases cited show, attached upon the filing of the writ of error in the office of the clerk of the circuit court. In Redfield v. Parks there was a like objection to the authentication of the transcript, but, more than three years having elapsed before the motion to dismiss was entered, and the cause having been submitted on printed briefs on both sides on the merits, the court gave leave to the plaintiff in error to sue out a certiorari to bring up the papers omitted from the transcript. Jurisdiction cannot be conferred by agreement, and, if a proper authentication had been essential to jurisdiction, in that case, it could not have been waived by filing briefs or otherwise. In this case the plaintiffs in error promptly after the’filing of the transcript with the clerk of this court obtained a certiorari, in obedience to which the pleadings in the case were properly certified and transmitted, and, if there is now wanting anything relevant to the errors assigned, it is a single order, made be
While this disposes of the motion to dismiss and of the counter motions of the plaintiffs in error, we deem it proper here, besides calling attention to the remarks of the Chief Justice in Railway Co. v. Stewart, 95 U. S. 279, in respect to what should be contained in a transcript, to say that the words “all proceedings in the case,” as used in the first clause of rule 14 of this court (21 C. C. A. cxv., and 78 Fed. cxv.), are to be interpreted with- reference to the words “all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court,” found in the third clause of the rhle. It is not intended that irrelevant papers, proceedings, or orders shall be certified; and, that the clerk may not be left in doubt, he may well require of the counsel or attorney of the appellant or plaintiff in error in a cause a prtecipe stating specifically what the transcript shall contain, and, attaching a copy of the praecipe to the transcript, certify that it is a true and correct transcript according to the praecipe. The motion to dismiss is overruled.