Mussina v. Cavazos

by Samuel Freeman Miller

United States Supreme Court

73 U.S. 355

Mussina  v.  Cavazos

MOTION to dismiss a writ of error to the District Court for the Eastern District of Texas; the case being thus:

The twenty-second section of the Judiciary Act provides that

'Judgments and decrees of the District Courts may be re-examined, and affirmed or reversed in a Circuit Court, upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal; with a citation, &c. And upon like process may judgment in the Circuit Courts be re-examined in the Supreme Court.'

In this case there was only a copy of the writ annexed to the transcript; but the plaintiff in error had filed an affidavit by which it appeared that during the late civil war, the records of the court had been almost entirely burnt up, and he swore that, as he verily believed, there were none of the original papers of the cause now in existence. Assuming the copy of the writ of error thus returned with the transcript to have been a true copy, then the clerk had made his writ to run thus:

'Because in the record and proceedings, as also in the rendition of judgment of a plea which is in said District Court before you, in which Simon Mussina is plaintiff in error and Maria Josefa Cavazos and Estefana Goascochea de Cortina are defendants in error, manifest error hath happened to the great damage of the said Simon Mussina,' &c.

The writ, it will be observed, did not say who was plaintiff below and who there defendants; though the description of the parties, as they appeared in this court, was correct. The petii on for the writ of effor, as contained in the transcript of the record, describes the parties thus:

'In a certain cause wherein Maria Josefa Cavazos and Estefana Goascochea de Cortina were plaintiffs and Simon Mussina defendant, a final judgment was rendered,' &c.

The bond given by plaintiff in error described the parties in the same manner.

Messrs. Robinson and Hale rested their motion to dismiss on the ground, 1st, that the twenty-second section of the Judiciary Act above quoted made it indispensable to the jurisdiction of this court that the writ of error itself annexed to the transcript, should be returned therewith; that here the writ of error was not returned, relying in support of their view on this point upon Castro v. United States, ^[1] and the previous case of Villabolos v. Same; ^[2] and 2d, that admitting that a copy might be substituted for the writ, and that the copy here was a true one, the parties to the suit had been fatally misdescribed in the original.

Messrs, Sherwood and Edmunds, contra.

Mr. Justice MILLER delivered the opinion of the court.

Notes

1. 3 Wallace, 46.
2. 6 Howard, 81.