53 F. 753 | 5th Cir. | 1893
(after stating the facts.) The judgment in this case, brought here for review, was rendered and entered on the 18th day of July, 1893, and was in favor of the defendants, adjudging that the plaintiffs take nothing by their suit, and the defendants go hence without day, and recover their costs. In the judgment neither plaintiffs nor defendants were specifically named. On the iOfch day of February, 1892, at a subsequent term of the court, on motion of plaintiffs’ attorneys, and on notice to defendants’ attorneys, the said judgment was amended so far, and only so far, as to insert therein a recital that as to three of the defendants, — Sam Hollis, W. I®. Darby, and Isaac Hamilton, — who had not been served with process i« the case, the plaintiffs’ action was dismissed without prejudice, and to insert the names of the plaintiffs and the defendants.
A writ of error was taken and allowed on the 6th day of May, 1892, more than 6 months, and nearly 10 months, after the rendition of the original judgment; and it is expressly stated in the petition and bond therefor that the writ of error is sued out for the purpose of reviewing the record and proceedings and the rendition of the judgment rendered in favor of the defendants on the 18th day of July, 1891. It would seem from this statement that the writ of error to this court, was sued out too late, not being taken or sued out within six months alter the entry of the judgment sought to be reviewed. The eleventh section of (he act entitled “An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction cf the courts of the United States, and for other purposes,” approved March 3,1891, provides “that no appeal or writ of error by which any order, judgment, or decree may he reviewed in the circuit courts of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed.”
We notice, further, that in the statement of the case, (which is agreed to be correct by counsel on both sides,) and particularly in the assignment of errors, the case is shown to be one which involves the construction and application of the constitution of the United states, as well as a case in which a law of the state of Texas is claimed to be in contravention of the constitution of the United States. In the fifth section of the act of 1891, supra, it is provided “that appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct to the supreme ■court., in the following cases: * * * (4) In any case that involves the construction or application of the constitution of the United States; * * * (6) in any case in which the constitution or law of the state is claimed to be in contravention of the constitution of the United States.” The sixth section of said act gives appellate juris
