No. 96 | 5th Cir. | Jan 30, 1893
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 pf error is hereby allowed. August 29, 1892. David E. Bryant, District J edge 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. Borne 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*, 189.2, 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 write 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 not the duty of the clerk, or Ms privilege, to change the writ of error, after* it is allowed, by .erasing and inserting a date, or by adding a date, any more than it is to make any other alteration in such papers. Nor may he, without the order of the proper court or judge, erase his own file mark on a paper which parties have procured to be filed. He may, and doubtless should, in some cases, add a new file mark or memorandum, signed by Mm officially, to show such facts in connection with Ms custody of the files as appears to Mm might be or become material. In the present case he might, without overstepping Ms duty, have noted on the writ what actually had occurred within Ms knowledge as to the signature of the judge on the writ of