1. As the appellate jurisdiction of this Court over the state
courts is confined to a reexamination of the final judgment or
decree in any suit in the highest court of a state in which the
decision of a suit could be had, the writ of error sued out here
should be sent only to such court, unless the latter, after
pronouncing judgment, sends its record and judgment, in accordance
with the laws and practice of the state, to the inferior court,
where they thereafter remain. In such case, the writ may be sent
either directly to the latter court or to the highest court in
order that, through its instrumentality, the record may be obtained
from the inferior court having it in custody or under control.
2. Where the Supreme Court of California reversed the judgment
of an inferior court and directed a modification thereof as to the
amount of damages, but without permitting further proceedings
below, if the defendants consented to the modification, and the
record shows that such consent was given,
held that the
judgment of the Supreme Court is final within the meaning of the
Act of Congress, and that the writ of error was properly directed
to that court.
3. Under the authority of sec. 1006 of the Revised Statutes, a
writ of error may be amended by inserting the proper return
day.
This is an action of replevin brought in the District Court for
the Fourth Judicial District of the State of California to recover
certain hay cut from lands in Solano County to which the plaintiffs
claimed title in consequence of rights alleged to have been
acquired under an Act of Congress entitled "An act to grant the
right of preemption to certain purchasers on the
Soscol Ranch,'
in the State of California," approved March 3, 1863, 12 Stat. 808.
The plaintiff having died pendente lite, his executors
were substituted in his stead. The defendants denied the
plaintiff's title and averred that they, in good faith and under
color of title, held the land adversely to his pretended claim. The
jury found a verdict in favor of
Page 91 U. S. 144
the defendants for the value of the hay in controversy, with
interest thereon. Judgment was for the defendants for $13,896.43.
The plaintiffs appealed to the supreme court of the state, which
adjudged
"That the judgment be reversed and the cause remanded with
directions to the court below to proceed to try the cause anew
unless, within twenty days after the filing of the remittitur in
the court below, the defendants shall file with the clerk of that
court a written consent that the judgment be modified by striking
out the damages therein awarded, and inserting, in lieu thereof,
the sum of $8,989, and upon such consent's being filed, it is
ordered that the judgment be modified accordingly, and also that it
be made payable in due course of administration."
The written consent of the defendants having been filed in the
district court, the judgment of that court was modified as ordered
by the Supreme Court.
On the fourteenth day of July, 1875, the plaintiffs sued out
this writ of error, directed to the Supreme Court of California.
The writ bears test on the day of its issue, but contains no return
day.
Page 91 U. S. 145
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The plaintiffs in error claimed title to the hay in controversy
in this case in consequence of alleged rights acquired under the
Act of Congress, passed March 3, 1863, entitled "An act to grant
the right of preemption to certain purchasers on the
Soscol
Ranch' in the State of California." 12 Stat. 808. The decision of
the state court was against their title. This presents a question
within the jurisdiction of this Court.
Page 91 U. S.
146
The judgment of the Supreme Court is the final judgment in the
suit within the meaning of the Act of Congress. Rev.Stat. 709. It
reversed and modified the judgment below, and did not permit
further proceedings is the inferior court, if the defendants
consented to the modification directed as to the amount of damages.
This consent has been given, as the record shows, and the judgment
of the court below is the judgment which the Supreme Court directed
that court to enter and carry into execution. The litigation was
ended by the decision of the Supreme Court. No discretion was left
in the court below if the required consent was given.
The writ of error was properly directed to the supreme court of
the state. We can only reexamine the "final judgment or decree in
any suit in the highest court of a state in which a decision in the
suit could be had." Rev.Stat. sec. 709. For the purposes of such a
reexamination, we require the record upon which the judgment or
decree was given, and we send out our writ of error to bring it
here. That writ is to operate on the court having the record, and
not upon the parties.
Cohens v.
Virginia, 6 Wheat. 410. The citation goes to the
parties, and brings them before us. The writ of error, therefore,
is properly "directed to the court which holds the proceedings as
part of its own records, and exercises judicial power over them."
Hunt v.
Palas, 4 How. 590. If the highest court of the
state retains the record, the writ should go there, as that court
can best certify to us the proceedings upon which it has acted and
given judgment. As it is the judgment of the highest court that we
are to reexamine, we should, if we can, deal directly with that
court, and through it, if necessary, upon the inferior tribunals.
It is perhaps safe to say that a writ will never be dismissed for
want of jurisdiction because it is directed to the highest court in
which a decision was and could be had. We may not be able in all
cases to reach the record by such a writ, and may be compelled to
send out another to a different court before our object can be
accomplished, but that is no ground for dismissal. We have the
right to send there to see if we can obtain what we want.
But in some of the states -- as, for instance, New York and
Massachusetts -- the practice is for the highest court, after
its
Page 91 U. S. 147
judgment has been pronounced, to send the record and the
judgment to the inferior court, where they thereafter remain. If in
such a case our writ should be sent to the highest court, that
court might with truth return that it had no record of its
proceedings, and therefore could not comply with our demand. Upon
the receipt of such a return, we should be compelled to send
another writ to the court having the record in its possession. It
has been so expressly decided in
Gelston v.
Hoyt, 3 Wheat. 246, and
McGuire v.
Commonwealth, 3 Wall. 382. So too, if we are in any
way judicially informed, that under the laws and practice of a
state, the highest court is not the custodian of its own records,
we may send to the highest court and seek through its
instrumentality to obtain the record we require from the inferior
court having it in keeping, or we may call directly upon the
inferior court itself. But if the highest court is the legal
custodian of its own records and actually retains them, we can only
send there. This, we think, has always been the rule of practice,
notwithstanding Mr. Justice Story, in delivering the opinion of the
Court in
Gelston v. Hoyt, said that the writ might be
"directed to either court in which the record and judgment on which
it is to act may be found." 3 Wheat.
16 U. S. 304.
This was in a case where the judgment had been rendered in the
Court of Appeals of New York, but after its rendition, the record
with the judgment had been sent down to the inferior court, there
to be preserved in accordance with the law and uniform practice in
that state. Strictly speaking, the record cannot be found in two
courts at the same time. The original record may be in one and a
copy in another, or one court may have the record and another the
means of making one precisely the same in all respects; but the
record proper can only be in one place at the same time.
In
Webster v.
Reid, 11 How. 457, the general language of Mr.
Justice Story in
Gelston v. Hoyt was somewhat limited, for
in stating the ruling of the Court in that case, Mr. Justice McLean
gives it as follows:
"The writ of error may be directed to any court in which the
record and judgment on which it is to act may be found, and if the
record has been remitted by the highest court to another court in
the state, it may be brought by writ of error from that court."
To the same effect
Page 91 U. S. 148
is
McGuire v.
Commonwealth, 3 Wall. 386. That was a case from
Massachusetts. The suit was pending in the superior court of that
state, and after verdict but before judgment, certain exceptions
were sent up to the Supreme Judicial Court for its opinion. That
court subsequently sent down its rescript overruling the
exceptions, and thereupon final judgment was entered in the
superior court upon the verdict. This was according to the law and
practice in Massachusetts, and the effect was to leave the entire
record in the inferior court. Upon this state of facts, this Court
held that the judgment in that case was the judgment of the
superior court, and that that court was the highest court in which
the decision of the suit could be had, and therefore the only court
to which the writ could go. But it was also held that if the
Supreme Judicial Court had rendered the final judgment, and had
sent the judgment to the superior court, and with the judgment had
sent the record, the direction of the writ to the superior court
would have been proper.
Green v. Van
Buskirk, 3 Wall. 450, was also a New York case, and
is to be considered in the light of the peculiar practice in that
state. The record had been sent from the Court of Appeals to the
Supreme Court.
The rule may therefore be stated to be that if the highest court
has, after judgment, sent its record and judgment in accordance
with the law of the state to an inferior court for safekeeping and
no longer has them in its own possession, we may send our writ
either to the highest court or to the inferior court. If the
highest court can and will, in obedience to the requirement of the
writ, procure a return of the record and judgment from the inferior
court, and send them to us, no writ need go to the inferior court;
but if it fails to do this, we may ourselves send direct to the
court having the record in its custody and under its control. So,
too, if we know that the record is in the possession of the
inferior court, and not in the highest court, we may send there
without first calling upon the highest court; but if the law
requires the highest court to retain its own records, and they are
not in practice sent down to the inferior court, our writ can only
go to the highest court. That court, being the only custodian of
its own records, is alone authorized to certify them to us.
Page 91 U. S. 149
In this case, out writ went to the Supreme Court, and in
obedience to its command, that court has sent us its record. There
is now no need of a further writ, even if the practice in
California permitted the transmission of records from the Supreme
Court to the inferior courts. But such, as we understand is not the
practice. The Supreme Court is there the sole custodian of its own
records. Cases go there upon a transcript of the proceedings in the
court below. This transcript is retained in the Supreme Court and
is the foundation of the proceedings there. The transcript is
without doubt a copy of the proceedings in the court below, but
that does not make the record below the record above. The court
above acts only upon the transcript, and from that its record is
made.
The writ of error may be amended under the authority of sec.
1005 of the Rev.Stat. by inserting the proper return day. It is no
objection to the writ that it bears test on the day of its issue.
Rev.Stat. sec. 912.
The motion to dismiss is denied.
