U.S. Supreme Court Insurance Co. of Valley of Virginia v. Mordecai, 62 U.S. 21 How. 195 195 (1858)
Insurance Co. of the Valley of Virginia v. Mordecai
62 U.S. (21 How.) 195
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE WESTERN DISTRICT OF VIRGINIA
A writ of error must be made returnable to the first day of the term, which is now the first Monday in December. If made returnable to any subsequent day, it is erroneous, and will be dismissed on motion. It cannot be amended.
This was an action of debt brought by Mordecai, a citizen of South Carolina, upon a judgment which he had obtained against the insurance company in the Circuit Court of the United States for the District of South Carolina. A judgment was given also for Mordecai in the Circuit Court of Virginia, from which the insurance company sued out a writ of error in October, 1858, which was made returnable to this Court on the "second Monday in January next," being the second Monday in January, 1859
Mr. Phillips moved to dismiss the writ of error on the ground that the writ was not made returnable according to law, and in support of the motion gave the following reasons:
The English rules with regard to the return day of a writ of error are:
In the King's Bench it is returnable ubicumque &c.;, on the first or last general return of the term.
In the Exchequer Chamber it is returnable before the justices of the Common Bench &c.;, on a particular return day.
In the House of Lords, when the Parliament is sitting, the writ is made returnable before the King in his present Parliament, immediate. After a prorogation, the writ is returnable at the next session, or after a dissolution, at the next Parliament, specifying the day when it is to be holden.
By the act of 24th September, 1789, the court was directed to hold two sessions, the one commencing the first Monday in February, and the other, first Monday in August. The sessions of the court were subsequently changed by statute to be the second Monday in January, and then to the second Monday in December.
While the statute gives the commencement of a term, it does not regulate its duration. The court may sit several months or one month. If, therefore, a writ of error is not made returnable to the first day of the session, it may so happen that the record would be sent up on a day when the court is not in session.
It is true that the acts of Congress do not determine the day of return; this was left to be determined by the court under the power given to regulate its process.
Under the Act of the 3d May, 1792, it was made the duty of the clerk of this Court, with the approval of two of the judges, to prepare the form of a writ of error. This was done, and the writ then made out undoubtedly made it returnable to the first Monday of the Court. The clerk informs me that at each succeeding change of the terms, new blanks have been prepared in which the return day was stated to be the first of the term. Not only is the act silent as to the day of the return, but it is equally so as to the term. Yet this Court has in two cases dismissed a writ of error when a term had intervened. Blair v. Miller, 4 Dall. 21
While no rule of the court specifically declares that the writ
shall be made returnable to the first day of the term, the 43d rule, adopted in 1835, declares that when the judgment or decree is rendered thirty days before the term, the cause shall be docketed and the record filed within the first six days of the term. This is wholly inconsistent with the idea that a writ of error on such a judgment could be made returnable at a subsequent period.
AMENDMENT -- At common law, writs of error were not amendable. 1 Arch. Drac. 214. This was afterwards regulated by stat. of 1 Geo. I.
The 32d section of the Judiciary Act, though writs of error are not named, may be understood to confer a similar authority.
It may be, therefore, that leave to amend will be granted when there is anything to amend by. This was the case in 4 U. S. 4 Dall. 12.
In this case, there is nothing to amend by.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The defendant in error, on the 8th of October, 1858, obtained a judgment against the plaintiffs in error in the District Court of the United States for the Western District of Virginia.
On the 18th of the same month, this writ of error was sued out and made returnable on the second Monday in January then next ensuing -- in other words, it was made returnable on the second Monday in January in the present term of this Court, and the defendant in error was cited to appear here on that day.
A motion has been made to dismiss the case upon the ground that in order to bring the judgment of the district court before this Court, the writ of error must be returnable on the first day of the term, and that a writ of error with a different return day is not authorized by law, nor by the rules and practice of this Court.
By the Act of Congress of May 8, 1792, 1 Stat. 278, it was made the duty of the clerk of this Court to transmit to the clerks of the several circuit courts of the United States the form of a writ of error, to be approved by two of the judges of this Court, and the clerks of the circuit courts were by that act authorized to issue writs of error agreeably to such form as nearly as the case would admit. And it is by virtue of this act alone that the clerk of a circuit court, or of a district court exercising the jurisdiction of a circuit court, is authorized to issue a writ of error to remove a case to this Court.
Immediately after its passage, the form of a writ of error was adopted and transmitted to the clerks of the circuit courts, pursuant to its provisions, and that form made it returnable on the first day of the term of this Court next ensuing the issuing of the writ -- that is, one the day appointed by law for the meeting of the Court. The form then adopted has never been changed, nor are we aware of any case in which a writ of error with a different return day has been sanctioned by this Court.
It is unnecessary, therefore, to inquire what may be the rules of practice in this particular in other courts. The legal return day was fixed under the authority of the act of 1792, and a writ of error issued by the clerk of a circuit court, or of a district court exercising the powers of a circuit court, with a different return day or differing in any other material respect from the form transmitted, is without authority of law and will not bring up the case to this Court.
The rules of the Court have been framed in conformity with this return day of the writ, and the rule which permits a defendant in error to docket and dismiss a case if the transcript is not filed by the plaintiff within the time therein limited necessarily presupposes that the writ is returnable on the first day and that the plaintiff might then file the transcript.
He may, it is true, return the writ with the transcript at any time during the term, unless the case has been docketed and dismissed, when it cannot afterwards be filed without the special order of the Court. But this permission to return the writ and file the transcript at a subsequent day is upon the principle that for certain purposes of convenience or justice, the term is considered as but one period of time -- as one day, and that day the first of the term. The writ before us was obviously issued by some oversight of the clerk, who followed the form used when this Court met on the second Monday in January, without, it would seem, adverting to the circumstance that the day of meeting had been changed by law and that the first Monday in December, and not the second Monday in January, was the first day of the term.
Neither can the writ of error be amended. The defendant in error was cited and admonished to appear on the second Monday in January, and if the writ were amended, it could not be maintained with this citation, for the defendant must be cited to appear on the same day that the writ is returnable. The citation is the regular and familiar process from a court of justice, notifying and requiring the defendant to appear and make his defense, if he has any, on the return day of the writ. And the common law process of a writ of error made returnable on one day and a summons to the defendant to appear at another would be without precedent, and would be as objectionable as the entire absence of a citation. And the want of proof that the defendant was cited has always been held to be a fatal defect in the process prescribed and required by the act of 1789, whereby a party is authorized to bring the judgment of an inferior court before this Court for revision -- a defect which can be cured only by the voluntary appearance of the party entered on the record.
Nor can this mistake be corrected by a citation from this Court. The act of Congress requires it to be issued by the judge or justice who allows the writ of error, and it cannot be legally issued by any other judge or court.
The case must therefore be dismissed for want of jurisdiction in this Court.