A writ of error must be made returnable to the first day of the
term, which is now the first Monday in December. If made returnable
to any subsequent day, it is erroneous, and will be dismissed on
motion. It cannot be amended.
This was an action of debt brought by Mordecai, a citizen of
South Carolina, upon a judgment which he had obtained against the
insurance company in the Circuit Court of the United States for the
District of South Carolina. A judgment was given also for Mordecai
in the Circuit Court of Virginia, from which the insurance company
sued out a writ of error in October, 1858, which was made
returnable to this Court on the "second Monday in January next,"
being the second Monday in January, 1859
Mr. Phillips moved to dismiss the writ of error on the ground
that the writ was not made returnable according to law, and in
support of the motion gave the following reasons:
Page 62 U. S. 196
The English rules with regard to the return day of a writ of
In the King's Bench it is returnable ubicumque
on the first or last general return of the term.
In the Exchequer Chamber it is returnable before the justices of
the Common Bench &c., on a particular return day.
In the House of Lords, when the Parliament is sitting, the writ
is made returnable before the King in his present Parliament,
immediate. After a prorogation, the writ is returnable at the next
session, or after a dissolution, at the next Parliament, specifying
the day when it is to be holden.
By the act of 24th September, 1789, the court was directed to
hold two sessions, the one commencing the first Monday in February,
and the other, first Monday in August. The sessions of the court
were subsequently changed by statute to be the second Monday in
January, and then to the second Monday in December.
While the statute gives the commencement of a term, it does not
regulate its duration. The court may sit several months or one
month. If, therefore, a writ of error is not made returnable to the
first day of the session, it may so happen that the record would be
sent up on a day when the court is not in session.
It is true that the acts of Congress do not determine the day of
return; this was left to be determined by the court under the power
given to regulate its process.
Under the Act of the 3d May, 1792, it was made the duty of the
clerk of this Court, with the approval of two of the judges, to
prepare the form of a writ of error. This was done, and the writ
then made out undoubtedly made it returnable to the first Monday of
the Court. The clerk informs me that at each succeeding change of
the terms, new blanks have been prepared in which the return day
was stated to be the first of the term. Not only is the act silent
as to the day of the return, but it is equally so as to the term.
Yet this Court has in two cases dismissed a writ of error when a
term had intervened. Blair v. Miller,
4 Dall. 21
While no rule of the court specifically declares that the
Page 62 U. S. 197
shall be made returnable to the first day of the term, the 43d
rule, adopted in 1835, declares that when the judgment or decree is
rendered thirty days before the term, the cause shall be docketed
and the record filed within the first six days of the term. This is
wholly inconsistent with the idea that a writ of error on such a
judgment could be made returnable at a subsequent period.
AMENDMENT -- At common law, writs of error were not amendable. 1
Arch. Drac. 214. This was afterwards regulated by stat. of 1 Geo.
The 32d section of the Judiciary Act, though writs of error are
not named, may be understood to confer a similar authority.
It may be, therefore, that leave to amend will be granted when
there is anything to amend by. This was the case in 4
U. S. 4
In this case, there is nothing to amend by.
Page 62 U. S. 199
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The defendant in error, on the 8th of October, 1858, obtained a
judgment against the plaintiffs in error in the District Court of
the United States for the Western District of Virginia.
Page 62 U. S. 200
On the 18th of the same month, this writ of error was sued out
and made returnable on the second Monday in January then next
ensuing -- in other words, it was made returnable on the second
Monday in January in the present term of this Court, and the
defendant in error was cited to appear here on that day.
A motion has been made to dismiss the case upon the ground that
in order to bring the judgment of the district court before this
Court, the writ of error must be returnable on the first day of the
term, and that a writ of error with a different return day is not
authorized by law, nor by the rules and practice of this Court.
By the Act of Congress of May 8, 1792, 1 Stat. 278, it was made
the duty of the clerk of this Court to transmit to the clerks of
the several circuit courts of the United States the form of a writ
of error, to be approved by two of the judges of this Court, and
the clerks of the circuit courts were by that act authorized to
issue writs of error agreeably to such form as nearly as the case
would admit. And it is by virtue of this act alone that the clerk
of a circuit court, or of a district court exercising the
jurisdiction of a circuit court, is authorized to issue a writ of
error to remove a case to this Court.
Immediately after its passage, the form of a writ of error was
adopted and transmitted to the clerks of the circuit courts,
pursuant to its provisions, and that form made it returnable on the
first day of the term of this Court next ensuing the issuing of the
writ -- that is, one the day appointed by law for the meeting of
the Court. The form then adopted has never been changed, nor are we
aware of any case in which a writ of error with a different return
day has been sanctioned by this Court.
It is unnecessary, therefore, to inquire what may be the rules
of practice in this particular in other courts. The legal return
day was fixed under the authority of the act of 1792, and a writ of
error issued by the clerk of a circuit court, or of a district
court exercising the powers of a circuit court, with a different
return day or differing in any other material respect from the form
transmitted, is without authority of law and will not bring up the
case to this Court.
Page 62 U. S. 201
The rules of the Court have been framed in conformity with this
return day of the writ, and the rule which permits a defendant in
error to docket and dismiss a case if the transcript is not filed
by the plaintiff within the time therein limited necessarily
presupposes that the writ is returnable on the first day and that
the plaintiff might then file the transcript.
He may, it is true, return the writ with the transcript at any
time during the term, unless the case has been docketed and
dismissed, when it cannot afterwards be filed without the special
order of the Court. But this permission to return the writ and file
the transcript at a subsequent day is upon the principle that for
certain purposes of convenience or justice, the term is considered
as but one period of time -- as one day, and that day the first of
the term. The writ before us was obviously issued by some oversight
of the clerk, who followed the form used when this Court met on the
second Monday in January, without, it would seem, adverting to the
circumstance that the day of meeting had been changed by law and
that the first Monday in December, and not the second Monday in
January, was the first day of the term.
Neither can the writ of error be amended. The defendant in error
was cited and admonished to appear on the second Monday in January,
and if the writ were amended, it could not be maintained with this
citation, for the defendant must be cited to appear on the same day
that the writ is returnable. The citation is the regular and
familiar process from a court of justice, notifying and requiring
the defendant to appear and make his defense, if he has any, on the
return day of the writ. And the common law process of a writ of
error made returnable on one day and a summons to the defendant to
appear at another would be without precedent, and would be as
objectionable as the entire absence of a citation. And the want of
proof that the defendant was cited has always been held to be a
fatal defect in the process prescribed and required by the act of
1789, whereby a party is authorized to bring the judgment of an
inferior court before this Court for revision -- a defect which can
be cured only by the voluntary appearance of the party entered on
Page 62 U. S. 202
Nor can this mistake be corrected by a citation from this Court.
The act of Congress requires it to be issued by the judge or
justice who allows the writ of error, and it cannot be legally
issued by any other judge or court.
The case must therefore be dismissed for want of
jurisdiction in this Court.