the delay was the act of the court and not the act of the parties, and that injustice will be done unless the order be made effectual.94

In order that a writ of error may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed. Execution cannot issue upon the judgment until the expiration of ten days, exclusive of Sundays, from the entry thereof; and if the writ of error and bond are filed before the expiration of the ten days, no execution can issue so long as the case in error remains undisposed of. After the expiration of the ten days an execution may issue, if the writ and bond have not been filed; but, notwithstanding this, under the provisions of the statute above quoted, upon the filing of the bond and writ within sixty days from the time of the entry of the judgment, a supersedeas may be obtained, but it will, however, stay proceedings only from the filing of the bond, and will prevent further proceedings under the execution which has been issued, but will not interfere with what has already been done.95

§ 450. Citation in error-By what judges signed.-When the writ of error "is issued by the supreme court of the United States to a state court, the citation shall be signed by the chief justice, or judge, or chancellor of such court, or by a justice of the supreme court of the United States, and the adverse party shall have at least thirty days notice.""

§ 451. Service of citation in error-Upon attorney and counsel of record.-Citation in error, as was shown in a previous section, is not, in the federal judicial system, an original writ, nor the commencement of a new suit, but a summons or notice to the defendant in error to advise him that the record in the cause has been removed to the appellate court for re-examination upon points of law." The federal statute provides that the

94 Sage v. Cent Ry. Co., 93 U. S. 412-420 (23:933).

95 Board of Commissioners v. Gorman, 86 U. S. 661-665 (22: 226); Kitchen v. Randolph, 93 U. S. 89 (23:810); Foster v. Kansas, 112 U. S. 204 (28:630).

96 U. S. Rev. Stat. sec. 999, 4 Fed. Stat. Anno. 610; Butler v. Gage, 138 U. S. 52-61 (34:869); Havnor v. New York, 170 U. S. 408-411 (42:1087); Bartemeyer v. Iowa, 14 Wall. 26-28 (20:792).

97 Ante, secs. 422, 423.

98

defendant in error "shall have at least thirty days notice," as and one of the supreme court rules provides that "all appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return-day fall in vacation or in term time, and must be served before the return day.""

The citation in error (as in appeal). may be served (1) upon the defendant in error, or (2) upon his attorney or counsel of record in the cause, with like effect as upon the party himself; and no attorney or counsel can withdraw his name ofter he has once entered it upon the record, without the leave of the court, and while his name continues there the opposite party has a right to treat him as the authorized attorney and counsel, and the service of the citation in error upon him is valid. The citation may be waived by a general appearance, or by the acceptance of service of a defective citation, or by action equivalent to an acknowledgement of notice; but the service or acknowledgement or waiver can be made upon or by no one other than the party himself or his attorney or counsel of record. But if the counsel of record is dead, the citation cannot be served upon his personal representative, nor even upon his partner, if that partner does not regularly appear on the record as counsel in the cause.1

The necessity of the actual issue and actual service of citation, (both in writs of error and appeals, except in cases of appeals allowed in open court, or in the absence of equivalent notice or waiver), is reiterated in many cases, but much liberality is exercised by permitting service to be made during the return term, or allowing a new citation to be issued and served, where the circumstances of the case call for an exercise of the discretion of the appellate court.2

98 U. S. Rev. Stat. sec. 999; 4 Fed. Stat. Anno. 610.

99 U. S. Supreme Court rule VIII sec. 5.

1 Tripp v. Santa Rosa Street Ry. Co., 144 U. S. 126-130 (36:371); United States v. Curry, 6 How. 106-114 (12:363); Bacon v. Hart, 1 Black, 38 (17:52); Villabolas v. United States, 6 How. 81 (12:352);

Bigler v. Waller, 12 Wall. 142 (20: 260); Goodwin v. Fox, 120 U. S. 775 (30:815); Davis v. Waklee, 156 U. S. 680-692 (39:578).

2 Hewitt v. Filbert, 116 U. S. 142 (29:581); Dayton v. Lash, 94 U. S. 112 (24:33); Tripp v. Santa Rosa Street Ry. Co., 144 U. S. 126130 (36:371).

§ 452. Mode of serving citation in error.-Neither the federal statute, nor any rule of court, prescribes any mode for the serving of citation in error, the one declaring that the defendant in error shall have "notice," and the other providing that the citation shall "be served."' 4 The federal supreme court has declared that, in the service of citation in error, it cannot be governed by the varying laws of the several states upon the subject, and that service by mail will not be recognized. The court then declares that service of the citation in accordance with the thirteenth equity rule which prescribes the mode of serving a subpoena ad respondendum in chancery would doubtless be sufficient, which rule is as follows: "The service of all subpoenas shall be by delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in his family." As shown in the section next preceding, the citation may be served on the attorney or counsel of record.

§ 453. Writ of error bond.-It is provided by statute that: "Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States, or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.""

§ 454. The writ of error must be brought within two years. A writ of error from the federal supreme court to review a judgment or decree of a state court must be bought within two years after the entry of the judgment; and the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ in the inferior court that removes the record

3 U. S. Rev. Stat. sec. 999, 4 Fed. Stat. Anno. 610.

4 U. S. Supreme Court, rule VIII sec. 5.

5 Tripp v. Santa Rosa Street Ry. Co., 144 U. S. 126-130 (36:371).

6 U. S. Rev. Stat. sec. 1000, 4 Fed. Stat. Anno. 612. For correct form of writ of error bond, see 2 Bates Fed. Eq. Proc. p. 1273.

therefrom to the appellate court, and the period of limitation. prescribed by the act of congress must be calculated accordingly.'

§ 455. Parties to writs of error.-It is a fundamental rule of the common law, that no person can bring a writ of error to reverse a judgment who is not a party or privy to the record. Writs of error to remove the judgments of inferior courts to the federal supreme court are, under the federal judiciary act, governed by the principles and usages of the common law, and no one can bring up, as plaintiff in a writ of error, the judgment of an inferior to a superior court, unless he was a party or privy to the judgment below, nor can any one be made a defendant in the writ of error, who was not a party or privy to the judgment in the inferior court."

The rule is universal that when there is a joint judgment against several defendants, and the joint interest of all is affected by the judgment, all of the parties affected thereby must join in the writ of error, or it will be quashed or dismissed, unless a severance of the parties has been effected by a summons and severance, or by some equivalent action appearing upon the record.10 A written notice to a party against

7 U. S. Rev. Stat. secs. 1003, 1008. 4 Fed. Stat. Anno. 616, 622; Cummings v. James, 104 U. S. 419 (26: 824); Scarborough v. Pargoud, 108 U. S. 567-568 (27:824); Polleys v. Black River Improvement Co., 113 U. S. 81-84 (28:938).

8 2 Tidd's Practice (1807) 10521055; Dougherty v. Compton, 3 Smedes & Marshall (Miss.) 100; Flournoy v. Smith, 3 How. (Miss.) 62; Beazley v. Prentiss, 13 Smedes & Marshall (Miss.) 97; Gordon v. Gibbs, 3 Smedes & Marshall (Miss.) 473; Mayer v. McLure, 7 George (Miss.) 389; Smith v. Gerloch, 2 Texas, 424; Dupree v. Perry, 18 Ala. 34; Watson v. May, 8 Ala. 177; Bayard v. Lombard, 9 How. 530 (13:245); Payne v. Niles, 20 How. 219 (15:895); Ex parte Cockcroft, 104 U. S. 578 (26:856);

Guion v. Ins. Co., 109 U. S. 168 (27:895); Bull v. Meloney, 27 Conn. 560; Alling v. Shelton, 16 Conn. 436; Coe v. Conn., 5 Conn. 86; Arnett v. McCain, 47 Ark. 413. 9 Payne v. Niles, 20 How. 219221 (15:895).

10 Simpson v. Greely, 20 Wall. 152-158 (22:338); Hanrick v. Patrick, 119 U. S. 156-176 (30:396); Williams v. Bank, 11 Wheat. 414 (6:508); Mussina v. Cavazos, 20 How. 280 (15:878); Hampton v. Rouse, 13 Wall. 17 (20:593); Smith v. Pevine & Co., 12 How. 327 (13: 1008); Davenport v. Fletcher, 16 How. 142 (14:879); O'Dowd v. Russell, 14 Wall. 402-405 (20:857); Feibleman v. Packard, 108 U. S. 14 (27:634); Harder v. Wilson, 146 U. S. 179 (36:933); Estes V. Traube, 128 U. S. 225-230 (32:437).

whom a joint judgment has been rendered, requesting him to join in the writ of error, and his refusal to join, are, if appearing from the record, the equivalent of a summons and severance, and will sustain the writ." A defendant against whom a separate, distinct personal judgment for money has been rendered, and in which his co-defendants have no interest, has a right to prosecute a writ of error in his own name without joining them.12 It is well settled that the federal supreme court cannot take jurisdiction of a writ of error which desscribes the parties by the name of a firm or in any other way than by their individual names; but where the record discloses the names of the parties the writ may be amended.13

§ 456. The plaintiff in error must have a personal interest in the federal question.-The party who brings a writ of error to reverse a judgment or decree of a state court upon the ground that the suit involves a federal question must show that he has a personal interest in the litigation and in the decision of the question. He must show that it was decided against him in the state court. The federal right claimed must be personal to the plaintiff in error, and he cannot maintain the jurisdiction of the supreme court to review the judgment upon the ground that the defendant in error asserted a federal right in the state court and obtained a decision in his favor.11 Neither will an official interest, where there is no real, sub

11 O'Dowd v. Russell, 14 Wall. 402-405 (20:857); Masterson v. Herndon, 10 Wall. 418 (19:954); Simpson v. Greely, 20 Wall. 158 (22:339).

12 Germain v. Mason, 12 Wall. 259-261 (20:392); Brewster V. Wakefield, 22 How. 118 (16:301).

13 Estes v. Traube, 128 U. S. 225230 (32:437).

14 Smith v. Indiana, 191 U. S. 138-150 (48:125); Tyler v. Registration Court Judges, 179 U. S. 405 (45:252); Clark v. Kansas City, 176 U. S. 114 (44:392); Turpin v. Lemon, 187 U. S. 51 (47: 70); Lampasas v. Bell, 180 U. S. 276 (45:527); Ludling v. Chaffe, 143 U. S. 301 (36:313); Giles v.

Little, 134 U. S. 645 (33:1062); Missouri v. Andriano, 138 U. S. 497-501 (34:1012); Henderson v. Tennessee, 10 How. 311 (13:434); McNulta v. Lochridge, 141 U. S. 327-332 (35:796); Texas & Pacific Ry. Co. v. Johnson, 151 U S. 81105 (38:81); Verden v. Coleman, 1 Black, 472-474 (17:161); Norwich & W. R. Co. v. Johnson, 15 Wall. 8 (21:118); Brown v. Smart, 145 U. S. 454 (36:773); Phinney v. Sheppard & E. P. Hospital, 177 U. S. 170 (44:720); Williams v. Eggleston, 177 U. S. 308 (44:720); Walworth v. Kneeland, 15 How. 348 (14:724); Owings v. Norwood, 5 Cranch. 344 (3:120).