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PaRT 5. Transla
Record to be printed.
language, it must contain also a translation of such document, &c"
The clerk is required, in all cases, to have fifteen copies of the record printed, at the expense of the United States.2
Retam to certiorari may- be made by the clerk.
PROCEEDINGS SUBSEQUENT TO THE RETURN.
The cause being now in the appellate court, it behooves the parties to ascertain whether the return is complete, and if not, to pray a certiorari to the court below to supply the deficiency. Either party may allege, or, as it is usually termed in the reports, suggest diminution; and formerly it appears to have been the practice to make the suggestion orally. But by one of the general rules of the court the motion for a certiorari must be in writing; and the facts on which it is founded, if not admitted by the adverse party, must be verified by aflidavit. The rule also requires the motion to be made at the first term.3
In the case of Fenenwre v. The United States (3 Dallas, 360, note), it became a question whether the rule authorizing a return to a writ of error to be made by the transmission, by the clerk of the court
1 Appendix, Rule 11, Rules S. C.
'Rule 10. For further particulars, see these rules. Appendix.
* Appendix, Rule 14, S. C. Rules. The practice of the supreme court in this respect, is much more simple, and at the same time more effective, than that of the English courts, upon writs of error directed to one of the superior courts; where the right to allege diminution appears to be confined to the plaintiff, and where the allegation is to be made in the form of an assignment of error. The practice of the supreme court nearly resembles the English practice said to be applied to cases brought for review from an inferior court, in which the plaintiff in error is not allowed to assign diminution for error, but the court directs a certiorari to issue ad informandum conecientiam.
to which the writ of error was directed, of a transcript CHaF-4under his hand and the seal of his office, was to be construed as extending to a certiorari issued upon an allegation of diminution, so as to authorize a return thereto in the same manner; and it was the opinion of a majority of the court that such ought to be its construction; and in Stewart v. Ingle et al. (9 Wheat., 526), this practice was sanctioned and confirmed. In the case of Barton v. Petit etal. (7 Cranch, 288), special
x 'writ, when
a writ of error was brought to reverse a judgment necessary. on a bond given to the marshal with condition to have certain goods forthcoming at the day of sale appointed by the marshal; being goods which he had seized under a fi. fa. issued upon a former judgment recovered by the defendants in error against the plaintiffs in error, which judgment was reversed at the last preceding term of the supreme court of the United States. The ground upon which it was contended that the judgment upon the bond ought to be reversed, was the reversal of the original judgment. Under these circumstances it became a question in what manner the fact should be verified, that the execution, upon the levy under which the bond had been taken, was issued upon the identical judgment which had been reversed. Upon this question the court was of opinion that a certiorari, upon suggestion of diminution, was not the appropriate remedy; and, moreover, that it would not be regular to receive the certificate of the clerk of the court below, of the dependency of the latter, upon the former judgment. The court, therefore, ordered a special writ to be framed applicable to such cases, directed to the clerk of the court below, requiring him to certify, under the seal of the court, the execution recited in the bond on which the second judgment was rendered. The case being novel, the court
FaHT 5- would not permit the plaintiff in error to suffer in consequence of his delay in moving, but remarked that "in future the party must take the consequences of his neglect if he should fail to have the execution certified in time."
The appellate jurisdiction of the supreme court from the judgment of the inferior courts of the United States being, as we have seen, limited to cases in Amount m ^jg^ flje matter in dispute exceeds the sum or value versy. of £WO thousand dollars exclusive of costs, it must always appear upon the return of the writ of error that the cause involves that amount; and unless the fact is sufficiently established by the record, it is incumbent upon the plaintiff in error to prove it to the satisfaction of the court.1 The supreme court have deemed it necessary, therefore, to adopt the May be practice of permitting the plaintiff in error to show, Huiduwty affi^lv^t'to foe satisfaction of the court, that the matter in dispute amounts to the requisite sum or value.2 So the appellate jurisdiction of the circuit courts from the judgments of the district courts being restricted to cases in which the matter in dispute, exclusive of costs, exceeds fifty dollars, the same necessity for proof aliunde as to the amount in controversy, exists in these courts, and the rule of the supreme court being founded in necessity, is, it is presumed, followed in all the circuit courts.
In the case of The United States v. The Brig Union,
1 It has already been shown, (supra, p. 42, et seq.) under what circumstances the record is to be considered as furnishing this evidence, and when it is necessary to resort to proof aliunde.
'There was formerly a general rule of the court, or rather an early decision of the court printed among the rules, as rule 13, to this effect, which required notioe to the opposite party and entitled him to prodnce eounter affidavits. But this rule is omitted in the revised rules of 1858, as will be seen by referring to the appendix.
4 Cranch, 116, (which, though an appeal, was sub- Chap. 4. ject in this respect to the same rules as a writ of error), a witness was introduced and sworn viva voce in open court as to the value, and upon the evidence thus taken, and such further evidence as the record was supposed to afford, the cause was dismissed for want of jurisdiction, the court not being satisfied that the amount in controversy was sufficient. On the next day the attorney general, in behalf of the plaintiffs, moved for a continuance of the cause, and for leave to take affidavits respecting the value in controversy, so as to sustain the jurisdiction of the court, but the motion was denied upon the ground that the parties had once put themselves on trial upon the evidence already adduced, and a decision had been made. The reporter adds, that no objection was made to the viva voce examination of the witness upon the question of value.
It is necessary, in the next place, to inquire to what amendextent the parties are entitled to relief by amend- ments ments granted in the appellate court. No amend- ^?°*t ment of a writ of error could be allowed at common ^ud" law, it being a maxim that all amendments are granted for the support of judgments; but the design of writs of error is to reverse them. Ld. Eayni., 71. Nor was there in England any statute of jeofails embracing writs of error until the passage of a special act with respect to them, in the reign of George I. They are not named in the 32d section of the judicial act of 24th September, 1789, and by the late decisions of the supreme court it has become a settled doctrine of that court that a writ of error is not amendable. It is only in virtue of the writ that the court can take cognizance of the cause at all, and if the writ is defective, the court has no power to amend
Part-5. it, even by consent of parties. Hodge et al. v. Williams, 22 Howard, 87.1 This principle comprehends all amendments requiNo amend- site to the maintenance of jurisdiction, and, therefore,
record where the amount in dispute as shown to the record,
allowed to .
support was insufficient, the court refused to allow the lnser
jurisdic- - , -
tion. tion of a claim for interest, which would have increased the amount to the requisite sum. Udal l v. The Steamship Ohio, 17 Howard, 17; Olney v. The Steamship Falcon, Id., 19. And so, if the requisite allegations of citizenship are wanting, the supreme court will not allow them to be inserted. This can be done only in the court below after the cause has been remanded on dismission. Jackson v. Ashton, 10 Peters, 180. But it is otherwise with matters not
other affecting the jurisdiction of the court. Thus where
errors ° J
it was shown by the certificate of the clerk that there was a clerical error in the transcript of the record sent to be filed in the supreme court, that court allowed the error to be corrected without the formality of a certiorari. Woodward v. Brown, 13 Peters, 1.
,There are reported cases of very early date in which defects in a writ of error were allowed to be amended or disregarded; and these cases ought not to be left unnoticed, althongh the comprehensive and decided language of the court in the case cited in the text seems soaroely to warrant an expectation that they will be followed. In Moetman v. Siggim (4 Dallas, 12,) a blank was left in the writ for the return day. But the writ was regularly tested, and was indorsed by the clerk, "Returnable to February term, 1799." By other indorsements it appeared when it was returned into the office of the clerk of the oourt below, and when in the supreme oourt, a motion was made in behalf of the plaintiff in error to amend by filling the blank on the ground that "there was enough to amend by;" and the court answered, "Let the amendment be made." In Course v. Stead (4 Dallas, 22), the writ being tested in vacation, was held to be amendable. And in Biakewell v. Patten et al. (7 Cranch, 277), the writ, issued in September and made returnable at the next February term, was tested of the preceding February term, instead of the [now obsolete] August term; and a motion to dismiss or quash the writ on account of this defect, was denied.