If a writ of error be served before the return day, it may be
returned afterwards, even at a subsequent term, and the appearance
of the defendant in error waives all objection to the irregularity
of the return.
The writ of error was dated 23 December, 1805, and returnable to
February term, 1806; the citation also bore the same date, and
commanded the defendant in error to appear at the same term. The
writ of error was filed in the clerk's office of the court below on
the same 23 December. The judgment below was not signed until 4
January, 1806. The writ of error was not returned and filed in the
clerk's office of the Supreme Court until t18 March, 1806, after
the Court had closed its session.
P. B. Key, for plaintiff in error, suggested that in such a case
the writ of error ought to be dismissed of course.
The Court, however, inclined to be of a contrary opinion, but
informed Key that they would give him an opportunity to show the
contrary.
On a subsequent day he contended that the writ could not be
returned at any other term than that to which it was returnable and
to which the defendant in error had been cited to appear. After the
expiration of the term, it was void. The execution of a writ of
error is the sending up the record according to its command, and to
send the record up at another term is no execution of the writ.
Page 8 U. S. 181
THE CHIEF JUSTICE stated that there had been some difference of
opinion among the judges, which arose from their not understanding
perfectly the facts of the case.
If the writ of error had been served when it was not in force
(that is, after its return day), such service would have been void.
But if served while in force, a return afterwards will be good.
The service or a writ of error is the lodging a copy thereof for
the adverse party in the office of the clerk of the court where the
judgment was rendered. 1 Laws U.S. 63, s. 23
If it be so served before the return day, the service is
good.
In the case cited from 4 Dallas, it does not appear which party
made the motion nor whether there was an appearance for the
opposite party.
In the present case, the writ of error having been served when
in full force and the writ of error returned, although not at the
first term, the appearance of the defendant in error has waived all
objection to the irregularity of the return.
The judgment was
Affirmed.
Note. No notice was taken of the fact that the writ of error was
served before the judgment below was signed.