Atherton v. Fowler,
91 U.S. 143 (1875)

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U.S. Supreme Court

Atherton v. Fowler, 91 U.S. 143 (1875)

Atherton v. Fowler

91 U.S. 143


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

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