Bondurant Tutrix v. Watson/Opinion of the Court

by Morrison Waite

United States Supreme Court

103 U.S. 278

Bondurant Tutrix  v.  Watson

We have no jurisdiction in this case, as no writ of error has ever been issued. Mussina v. Cavazos, 6 Wall. 355. By the ninth section of the act of May 8, 1792, c. 36 (1 Stat. 278), it was made the duty of the clerk of this court to transmit to the clerks of the several courts the form of a writ of error approved by two of the justices of this court. This was done, and the form adopted required the writ to be issued in the name of the President of the United States, and have the teste of the Chief Justice of this court. Sect. 1004 of the Revised Statutes is as follows:--

'Writs of error returnable to the Supreme Court may be issued as well by the clerks of the circuit courts under the seals thereof, as by the clerk of the Supreme Court. When so issued they shall be, as nearly as each case may admit, agreeable to the form of a writ of error transmitted to the clerks of the several circuit courts by the clerk of the Supreme Court, in pursuance of section nine of the act of May eight, seventeen hundred and ninety-two, chapter thirty-six.'

The writ in this case was in the name of the Chief Justice of the Supreme Court of the State of Louisiana. It bore the teste of that Chief Justice, and was signed by the clerk, and sealed by the seal of that court. It had not a single requisite of a writ of this court. Had it been even colorably issued from this court, it might have been amended under sect. 1005 of the Revised Statutes, which is certainly very liberal, and as follows:--

'The Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form: Provided the effect has not prejudiced, and the amendment will not injure, the defendant in error.'

But here there is nothing which even purports to be a writ from this court, and there is, therefore, nothing to amend. If we should permit the parties to change the seal, or the title, or to do everything else which this section allows, there would still be no writ, for nothing has been done either in the name of the President or under the authority of the United States. The Supreme Court of the State has directed that its record be certified here for examination and review, but no writ to that effect either in form or substance has ever issued from this court. As such a writ is necessary to our jurisdiction, the suit is

Dismissed.

Notes