When a supreme court of a state is composed of a chief justice
and several associates, writs of error to the court under the 25th
section of the Judiciary Act must be signed by the chief justice,
and if signed by one of the associates only, it will be dismissed
for want of jurisdiction.
The 25th section of the Judiciary Act, quoted
supra, p.
81 U. S. 5-6, which
gives a right to this Court to reexamine, in certain cases
specified, the final judgment or decree of any suit in the highest
court of law or equity in which a decision in the suit could be
had, says that the same.
"May be reexamined, and reversed or affirmed, in the Supreme
Court of the United States, upon a writ of error,
the
citation
Page 81 U. S. 27
being signed by the chief justice, or judge, or chancellor
of the court rendering or passing the judgment or decree
complained of; or by a justice of the Supreme Court of the United
States."
This statute being in force, one Bartemeyer sought to bring
here, under the 25th section thus referred to, of the Judiciary
Act, a judgment rendered by the Supreme Court of Iowa. That court
is composed of a chief justice and three associates.
The writ
was allowed by one of these last.
MR. JUSTICE MILLER delivered the opinion of the Court.
This case is submitted to us on printed argument. In this class
of cases, the Court has been in the habit of examining the record
to see if it has jurisdiction whether the question is raised by
counsel or not, and the case before us we find ourselves compelled
to dismiss, because there is no proper allowance of the writ of
error.
Writs of error to the circuit court, under the 22d section of
the Judiciary Act, issue as a matter of course, and can be obtained
from the clerk of the circuit court, and, when filed in his office
by the party, are duly served. But writs of error to the state
courts can only issue when one of the questions mentioned in the
25th section of that act was decided by the court to which the writ
is directed, and in order that there may be some security that such
a question was decided in the case, the statute requires that the
citation must be signed by the chief justice, or judge, or
chancellor of the court rendering or passing the judgment or decree
complained of, or by a justice of the Supreme Court of the United
States. It has been the settled doctrine of this Court that a writ
of error to a state court must be allowed by one of the judges
above mentioned, or it will be dismissed for want of jurisdiction,
and the case before us raises the question
Page 81 U. S. 28
whether the writ has been allowed by a judge authorized to do
so.
The Supreme Court of Iowa, which rendered the judgment
complained of, is composed of a chief justice and three associate
justices, and this writ is allowed by one of the associate
justices.
We are of opinion that the act of Congress requires that when
there is a court so composed, the writ can only be allowed by the
chief justice of that court, or by a Justice of the Supreme Court
of the United States. In case of a writ to a court composed of a
single judge or chancellor, the writ may be allowed by that judge
or chancellor, or by a Justice of the Supreme Court of the United
States.
The result of this construction of the statute is that the
associate justice of the Supreme Court of Iowa who allowed the
present writ had no authority to do so, and it is accordingly
Dismissed.
MR. JUSTICE SWAYNE, with whom concurred the CHIEF JUSTICE and
MR. JUSTICE BRADLEY, dissenting.
I dissent from the opinion just read. The objection was not
taken by the counsel for the defendant in error. The writ of error
was allowed by an associate justice of the supreme court of the
state -- the court by which the alleged error was committed. This,
I think, was sufficient. In my judgment, the construction given to
the provision in question, of the statute, is unwarrantably
narrow.
