Brooks v. Norris
52 U.S. 204 (1850)

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U.S. Supreme Court

Brooks v. Norris, 52 U.S. 11 How. 204 204 (1850)

Brooks v. Norris

52 U.S. (11 How.) 204

Syllabus

Where a judgment was rendered on 25 October, 1843, and a writ of error allowed on 19 October, 1848, but not issued and filed until 4 November following, more than five years had elapsed after rendering the judgment, and the writ of error may be dismissed on motion.

It is the filing of the writ which removes the record from the inferior to the appellate court, and 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.

By the English practice, this error must be taken advantage of by plea, but according to the practice of this Court a party may avail himself by motion of any defect which appears upon the record itself.

It appeared from the record that the judgment of the Supreme Court of Louisiana was rendered on 25 October, 1843.

The petition for the writ of error was addressed to the Honorable George Eustis, Chief Justice of the Supreme Court of the State of Louisiana. It was thus endorsed.

"Order allowing Writ"

"A writ of error is allowed as prayed for, without prejudice. Security is required in the sum of five hundred dollars."

"GEORGE EUSTIS"

"Chief Justice, Monroe West District"

"October 19, 1848"

"Supreme Court, Alexandria"

"Filed November 4, 1848 M. R. ARIAIL, Clerk"

Page 52 U. S. 205

"Bond for Writ of Error"

"Supreme Court, State of Louisiana"

"JEHIEL BROOKS v. SAMUEL NORRIS, in error"

"Know all men by these presents, that we, Jehiel Brooks, of the District of Columbia, and B. J. Sage, of New Orleans, Louisiana, are held and firmly bound unto the above-named Samuel Norris, in the sum of five hundred dollars, to be paid to the said Samuel Norris, his executors or administrators. To which payment well and truly to be made we bind ourselves and each of us, jointly and severally, and our and each of our heirs, executors, and administrators, firmly by these presents."

"Sealed with our seals, and dated this 19 October, A.D. 1848."

"Whereas the above-named Jehiel Brooks hath prosecuted a writ of error to the Supreme Court of the United States to reverse the judgment rendered in the above-entitled suit by the Supreme Court of the State of Louisiana."

"Now therefore, the condition of this obligation is such that if the above-named Jehiel Brooks shall prosecute his said writ of error to effect and answer all costs if he shall fail to make good his plea, then this obligation shall be void, otherwise the same shall be and remain in full force and virtue."

"B. J. SAGE, for Jehiel Brooks"

"B. J. SAGE"

"Sealed and delivered, in the presence of"

"Test ____ JOHN RAY"

"Approval of Bond"

"Personally appeared before me the above-named B. J. Sage and John Ray, who acknowledged their signatures to the foregoing bond, which is approved in the case of Brooks, plaintiff in error v. Norris."

"GEORGE EUSTIS, Chief Justice"

"Monroe Oct. 19, 1848"

"Instructions"

"The clerk of the Supreme Court will only sign the writ of error in the event of its being sued out within five years from the date of the decree of the Supreme Court in the case which it is taken."

"GEORGE EUSTIS, Chief Justice"

"Supreme Court, Alexandria"

"Filed November 4, 1848 M. R. ARIAIL, Clerk"

The writ of error bore the following teste:

Page 52 U. S. 206

"Witness the Honorable Roger B. Taney, Chief Justice of the said Supreme Court of the United States, this 4 November, A.D. 1848."

"M. R. ARIAIL"

"Clerk of the Supreme Court of the"

"State of Louisiana, at Alexandria"

"Copy of the writ of error lodged in the clerk's office of the Supreme Court of the State of Louisiana at Alexandria in pursuance of the statute in such cases made and provided, this 4 November, 1848."

"G. J. SAGE,"

"Attorney of Plaintiff in error"

"Supreme Court, Alexandria"

"Filed November 4, 1848"

Mr. Bullard, for the defendant in error, moved the court to dismiss this writ of error because the same was not brought within five years after the final judgment in the Supreme Court of the State of Louisiana.

Whereupon the court directed the motion to be set down for argument on that day week, viz., 24 January, and that the counsel give notice thereof to Mr. Walker, the counsel for the plaintiff in error.

On 24 January, the motion was argued by Mr. Bullard and Mr. Walker.

Page 52 U. S. 207

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