City of Washington v. Dennison/Opinion of the Court

by Samuel Nelson

United States Supreme Court

73 U.S. 495

City of Washington  v.  Dennison

The act gave to the city ten days, exclusive of Sundays, to sue out the writ of error, and take the other necessary steps which are required to operate as a supersedeas. The ten days expired on the 5th of December.

According to the settled practice, if the writ of error is sued out before the first day of the term, it must be made returnable on the first day of the next term, and so as to the citation; and, if sued out after, it must be made returnable the first day of the succeeding term. ^[1]

The cases cited also show, that both the writ and citation must be served before the return day-the writ by filing it in the clerk's office, and the citation by serving it on the party, or his attorney, or counsel.

In the present case it is, perhaps, sufficiently shown that the writ was placed in the clerk's office before the return day, but it was not sealed till the 5th of December, and until then it was a nullity. ^[2] Writs of error from this court to the Supreme Court of the District of Columbia are sued out under the same regulations as in cases of judgments in the Circuit Courts of the United States. ^[3]

The writ, therefore, not being sealed till the 5th day of December, eleven days after the judgment, it was too late to operate as a supersedeas, and it cannot be amended in this respect, as was held in Hodge et al. v. Williams. ^[4]

But if this objection could have been avoided, the omission to serve the citation before the return day of the writ is fatal.* It was not served till 6th of December.

MOTION DENIED.

Notes

1. Villabolos v. United States, 6 Howard, 89, 90; United States v. Curry, Id. 106, 112; Insurance Co. v. Mordecai, 21 Id. 195.
2. Overton v. Cheek, 22 Howard, 46; Act of Congress, May 8, 1792, § 9.
3. Brightly's Digest, 234, § 5; 12 Stat. at Large, 764, § 11.
4. 22 Howard, 87.