City of Waxahachie v. Coler, 92 F. 284

92 F. 284 | 5th Cir. | 1899

PA1I1)EE, Circuit Judge.

A motion is made to dismiss this appeal, on the grouud that the writ of error was not sued out within six mouths after i:he entry of the judgment. The judgment was eutered March 5, 1898. Ou September 3, 1898, the plaintiff in error presented to the district judge of the Northern district of Texar, the court in winch the judgment was rendered, a petition for a writ of error to this court, accompanied with an assignment of errors. The judge signed the order allowing the writ, conditioned upon the plaintiff in error furnishing a bond for S1,000. On the 5th of Sep temPer the bond was executed, approved, and filed, and on the same day the peti-twit for the writ, the assigmnent of errors, and the order allowing the writ were also filed. Ou the 9th of September, four days after the expiration of six months from the entry of the judgment, the clerk issued and filed the wiit, which bears teste and filing of that date; and the judge on the smue day signed the citation in error. On (let oher 4, 1898, 1 lie drfrndant in error filed a general appearance in this court.

`Jh~ ad: of co~gre~ of March 3, 1891, creating the eircni~ courth of appeai~, and dethung their jurisdiction, provides, among other mat~ ters:

"T~t no abpeal or writ of error by which ~iiy eider, julgineiit, or decree moy be reviewed in the circuit court o~ appeals under the provisions 01 this aei, shell be taken or sued out except within six months after the eniry of the order. judgmeid or decree sought to be reviewed."

AocI. fprthor: "That all provisions of law now in foico regulating the methods and system of review through appeals or writs of error shall regulate the methods and sysi ems of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, itieluding all provisions for bonds, or other securities to be required and i,aken on such appeals and writs of error." 26 Stat. 826, 829.

The writ of error i~ the writ which removes the case from the in-fenor to the ar)pcllate court, an~1 ita "issuance" or "brh~ging" or "sP ii~g out" is jurisdictional.

In Hodge v. Williams, 22 How. 88, it is said:

`~ntT this court have no appellate power over the judgment of the court below, unless tire judgment is brought here according to the act of congress,that is, by writ of error; and that writ, from its nature arid character, must he sued out by the party who alleges error in the judgment of the inferior court. This writ is not roere matter of form, but matter of substance pre~ scribed by law, and essential to the juriathction of tills court. 0 It is the duty of the parly who desires to bring a case before this court, to see that proper and legal process is sued out for that purpose; and if he fails to do so, ho has no right to treat the defect as a mere clerical error, for which ue is not to be bold responsible."

In Brooks v. Norris, 11 How. 207, it is said:

"It is the filing of the writ that re~noves the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress must be calculated accordingly."

These declaralions as to the necessity and effect of the writ of error have often been reiterated and followed, and never (to our knowledge) departed from. U. S. v. Curry, 6 How. 106, 113; Saltmarsh v. Tuthill, 12 how. 387, 389; Carroll v. Dorsey, 20 How. 204; Mussina v. Cavazos, 6 Wall. 355; Washington Co. v. Durant, 7 Wall. 694; Cummings v. Jones, 104 U. S. 419; Scarborough v. Pargoud, 108 U. S. 567, 2 Sup. Ct. 877; Polleys v. Improvement Co., 113 U. S. 81, 5 Sup. Ct. 369; Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 Sup. Ct. 107; Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771; Warner v. Railway Co., 2 U. S. App. 647, 4 C. C. A. 670, and 54 Fed. 920; U. S. v. Baxter, 10 U. S. App. 241, 2 C. C. A. 410, and 51 Fed. 624; Union Pac. Ry. Co. v. Colorado Eastern Ry. Co., 12 U. S. App. 110, 4 C. C. A. 161, and 54 Fed. 22; Stephens v. Clark, 18 U. S. App. 584, 10 C. C. A. 379, and 62 Fed. 321; Insurance Co. v. Phinney’s Ex’x, 48 U. S. App. 78, 22 C. C. A. 425, and 76 Fed. 617. A writ of error cannot be waived. See Stephens v. Clark, supra, and the many cases there cited.

The plaintiff in error contends that the term- “sued out,” as used in the act of 1891, does not mean the same as the term “brought,” in section 1008, Rev. St. U. S.; and that, within the meaning of the act of 1891, a party has sued out a writ of error when he has filed his petition and bond therefor, and obtained the allowance of the writ from the judge of-the court rendering the judgment. We find that the terms “brought” and “sued out,” as applied to writs of error, and meaning the issuance of the writ by proper authority, and the filing of the same in the proper court, appear to be used synonymously in the statutes of the United States, in the decisions of the courts, and in the text-books. See Judiciary Acts 1789, 1875, 1891, and Rev. St. U. S. §§ 635, 1008; Rev. St. D. C. § 848; 25 Stat.433; Hodge v. Williams, supra; Kitchen v. Randolph, 93 U. S. 86; Tidd, Prac. 1134 et seq. To sue out means to obtain judicially; to issue. To sue out a writ is to obtain and issue it. Burr. Law Diet. “Sued out” therefore means obtained and issued. As the writ of error in this case was- not sued out — that is, obtained and issued — within six months from the entry of the judgment in the circuit court, it seems we have no jurisdiction to review the judgment of that court. Whether the failure to obtain and issue the writ in time resulted from the negligence of the plaintiff in error, or was the fault of the clerk, appears to be immaterial. U. S. v. Curry, supra; Saltmarsh v. Tuthill, supra. The writ of error is dismissed.