Hodges v. Vaughan, 86 U.S. 12 (1873)

U.S. Supreme Court

Hodges v. Vaughan, 86 U.S. 19 Wall. 12 12 (1873) Hodges v. Vaughan

86 U.S. (19 Wall.) 12

ORIGINAL

Syllabus

When the only defect in a transcript sent to this Court is that the clerk has not appended to it his certificate that it contains the full record (there being no allegation of contumacy), a certiorari is not the proper remedy for relief to the plaintiff in error. He should ask leave to withdraw the transcript to enable him to apply to the clerk of the court below to append thereto the necessary certificate.

This was a motion made on behalf of the plaintiff in error for a certiorari upon suggestion of a diminution of a record coming on error from the Circuit Court for the

Page 86 U. S. 13

Eastern District of Arkansas. The diminution alleged was that the clerk of the court below had not appended to the transcript his certificate that the transcript contained the whole record.

MR. JUSTICE CLIFFORD delivered the opinion of the Court.

A motion for certiorari is founded upon a suggestion of diminution, and is designed to bring up some part of the record left back and not included in the transcript. When first presented, and without explanation, the court was inclined to grant the motion, but upon further consideration, we are all of the opinion that it must be denied, as the writ of certiorari is not a proper remedy for the alleged defect. Nothing is omitted from the transcript which is a part of the record in the court below. On the contrary, the only complaint is that the clerk has not appended to the transcript his certificate that it contains the full record. Such a defect, in a case of contumacy, might be remedied by a mandamus, but no application of that sort is made nor is it suggested that there are any grounds for such an application. Under the circumstances, the motion for certiorari is denied, and leave is granted to the plaintiff in error to withdraw the transcript to enable him to apply to the clerk of the court below to append thereto the necessary certificate.