This Court has already decided at the present term (
see
page <|62 U.S. 195|>195 of this volume) that a writ of error
made returnable on the third Monday in January, and the defendant
in error cited to appear on that day, is irregular and must be
dismissed.
A motion to remand the case to the court below, with leave to
amend the writ of error and citation, cannot be granted. But if the
plaintiff in error desires it, he may, in order to save expense,
withdraw the transcript, and use it in connection with the proper
and legal process to bring the case here.
Page 62 U. S. 394
A motion was made to dismiss the writ, upon the ground stated in
the opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The writ of error in this case was issued on the 27th day of
December last, and made returnable on the third Monday in January,
and the defendant in error cited to appear on that day.
It has already been decided at the present term, in the case of
Insurance Co. of the Valley of Virginia v. Mordecai, that
such a writ of error cannot be supported, and does not bring the
case before the Court.
A motion has been made, on behalf of the plaintiff in error, to
remand the case to the court below, with leave to amend the writ of
error and citation. But, as the transcript stands, there is no case
before us in which we can exercise a power of amendment. We can do
nothing more than dismiss it for want of jurisdiction.
But if the plaintiff desires it, he may, in order to save
expense, withdraw the transcript, and use it in connection with the
proper and legal process to bring the case here, and if withdrawn,
a receipt for it must be left with the clerk.
But as it now stands, it must be
Dismissed for want of jurisdiction.