63 U.S. 46 - John Overton Robert Brinkley Robertson Topp and James Jenkins v. Elijah Cheek and George W Cheek

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of West Tennessee.

Mr. Davidge moved to dismiss the writ for the following reasons, which motion was opposed by Mr. Gillet.

In this cause, a transcript of the record was filed in the office of the clerk of this court on the eighteenth day of February, 1858, and the cause was thereupon docketed. No writ of error was returned with the transcript; nor has any writ of error, in a legal sense, ever been returned. But on the twenty-seventh day of December, 1859, a paper was filed in the clerk's office, in form of a writ of error, but without the seal of the Circuit Court, whose proceedings are to be re-examined, and without an authenticated transcript of the record annexed to and returned with it, as required by the judiciary act.

By reference to the transcript, it will appear that the judgment of the Circuit Court was rendered on the sixteenth day of April, 1857. At the ensuing term of this court, the transcript was filed. The paper filed in the clerk's office purports to have been issued by the clerk of the Circuit Court on the seventeenth day of April, 1857, and it is returnable to this court on the first Monday of December, 1857. It does not appear ever to have been filed in the Circuit Court. There is no citation.

It is submitted——

1. That in order to give jurisdiction to this court, the writ of error must be under the seal of the Circuit Court, whose clerk is authorized to issue it. Act of Congress of May eighth, 1792, sec. 9; (1 Statutes at Large, 278.)

2. That the writ of error must be returned at the ensuing term. If a term intervene, the objection is fatal.

Hamilton v. Moore, 3 Dallas, 371.

Steamer Virginia v. West et al., 19 Howard, 182.

Villalobos v. United States, 6 Howard, 81.

United States v. Carey, ib., 106.

3. That there must be annexed to, and returned with, the writ, an authenticated transcript of the record. Without the writ, the transcript is filed without authority of law; and a writ of error without the record of the court to be reviewed, or reasons for not returning it, is not returned. Here the writ of error comes back as it went out. There is no return, and hence no jurisdiction.

4. The writ does not appear to have been filed in the Circuit Court.

Brooks v. Norris, 11 Howard, 204.

5. There was no citation, and no legal evidence of the waiver of the citation. The transcript filed does show that the citation was waived; but that transcript is not legally before this court, not having been returned in obedience to process.

6. That the transcript was not returned in conformity with law and the rules of this court.

Mr. Justice McLEAN delivered the opinion of the court.