TEXAS & PACIFIC RAILWAY COMPANY
v.
KIRK
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Texas & Pacific Railway Company sought to appeal a decision from the Texas Supreme Court to the United States Supreme Court, but the writ of error contained technical defects including an incorrect return date, the wrong court seal, and improper signatures. The Court held that these formal defects could be amended under statutory authority and granted leave to correct the writ, while denying the defendant's motion to dismiss and rejecting a motion to affirm without considering the merits of the case.
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Mr. Chief Justice Waite delivered the opinion of the court.
The defendant in error movgs to dismiss this casé for want of.a sufficient writ of error, and with this motion is united one to affirm under sec. 5 of Rule 6. The plaintiff in error moves for leave to amend the writ.
In our opinion the motion to amend should be granted. The writ is in every respect in accordance with the form transmitted by the clerk of this court to the clerks of the Circuit Courts, under the authority of the act of May 8th, 1792,- c. 36, sec. 9, now sec.' 1004 of the Revised Statutes, except that it is made returnable on a wrong day, bears the teste of the Chief Justice of the Supreme Court of Texas, and • is signed by the chief justice'and the clerk, and sealed with the seal of that court. It commands the Justices of the Supreme Court of Texas, in the name of. the President of'the United States', to transmit to this court for review their record and proceedings in a certain suit, which is properly described, and the return has been made and the cause duly docketed here. In Bmdurcmt v. Watson, 103 Ü. S. 278, relied on in support .of the motion to dismiss, the writ did not purport to be issued in the name of the President, or under the authority of the United States: It was in reality nothing more than an order of the Supreme Court of Louisiana-to its clerk to transmit the record and proceedings of that court. in a certain cause to this court for review.
By sec. 1005 of the Revised Statutes, we are authorized to allow an amendment of a writ of error, when there has been a mistake in the teste, ór a seal is wanting, or the writ is made returnable on a wrong day, “and in all other particulars of form.” This writ is signed by the clerk of the' Supreme Court of Texas; and in McDonough v. Millamdon, 3 How. 693, 707, the question whether that was not sufficient was left open. But however that may be, we think all the defects which are complained of are such as come within the remedial provisions of the statute, and the amendments asked for may be made, save only that the seal and the signature of the clerk of this court, instead of the Circuit Court of the "Western District of Texas, may be affixed to the writ. If the amendments, are made on or before Monday next, the motion to dismiss will be denied, otherwise' it will be granted.
"The case upon the merits is not of a character to be disposed of on a motion to affirm. That motion is overruled.
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The Mut. Life Ins. Co. v. Hartley, 92 Fla. 237 (Fla. 1926)…, it is not amendable and will be dismissed. Bondurant v. Watson, 103 U. S. 278. Writs of error may be amended' as to parties and a& to formal defects upon due application. West v. Johnson, 66 Fla. 4, 62 South. Rep. 913; Texas & P. Ry. Co. v. Kirk, 111 U. S. 486, 4 Sup. Ct. Rep. 500; Long v. Farmers’ State Bank, supra. The English statute of 5 Geo. 1, Ch. 13, provides: ‘ ‘ That all writs of error wherein there should be any variance from the original record, or other defect, may and shall be amended and ma…
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Miller v. Texas, 153 U.S. 535 (U.S. 1894)…es for the proper district, Ex parte Ralston, 119 U. S. 613, and such error would be amendable under § 1005, which provides that the Supreme Court may allow an amendment of a writ of error in all particulars of form. Texas & Pacific Railway v. Kirk, 111 U. S. 486. Of a similar mistake it was said in McDonogh v. Millaudon, 3 How. 693, 707: “ If errors had been assigned by the plaintiff here and joined by the defendant, no motion to dismiss for such a cause could be heard.” But the court express no opinion .as…
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Breese and Dickerson v. United States, 226 U.S. 1 (U.S. 1912)
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- Bondurant v. Watson, 103 U.S. 278 (U.S. 1880)