MUSSINA V. CAVAZOS, 73 U. S. 355 (1867)

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U.S. Supreme Court

Mussina v. Cavazos, 73 U.S. 6 Wall. 355 355 (1867)

Mussina v. Cavazos

73 U.S. (6 Wall.) 355


1. The writ of error by which a case is transferred from a circuit court to this Court is the writ of the Supreme Court, although it may be issued by the clerk of the circuit court, and the original writ should always be sent to this Court with the transcript.

2. The writ is served by depositing it with the clerk of the circuit court, and if he makes return by sending here a transcript in due time, this Court has jurisdiction to decide the case, although the original writ may be lost or destroyed before it reaches the Supreme Court.

3. The cases of Castro v. United States, 3 Wall. 46, and Villabolos v. Same, 6 How. 81, commented on and explained.

4. It is not a fatal defect in a writ of error that it describes the parties as plaintiffs and defendants in error, as they appear in this Court, instead of describing them as plaintiffs and defendants, as they stood in the court below, if the names of all the parties are given correctly.

Page 73 U. S. 356

5. Where a bill of exceptions is neither signed or sealed by the judge, so that there is nothing to show that it was submitted to him or in any way received his sanction, the judgment below will be affirmed. (See page <|73 U.S. 363|>363.)

The twenty-second section of the Judiciary Act provides that:

"Judgments and decrees of the district courts may be reexamined and affirmed or reversed in a circuit court upon a writ of error whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation &c. And upon like process may judgment in the circuit courts be reexamined in the Supreme Court."

In this case there was only a copy of the writ annexed to the transcript; but the plaintiff in error had filed an affidavit by which it appeared that during the late civil war, the records of the court had been almost entirely burnt up, and he swore that, as he verily believed, there were none of the original papers of the cause now in existence. Assuming the copy of the writ of error thus returned with the transcript to have been a true copy, then the clerk had made his writ to run thus:

"Because in the record and proceedings, as also in the rendition of judgment of a plea which is in said district court before you, in which Simon Mussina is plaintiff in error and Maria Josefa Cavazos and Estefana Goascochea de Cortina are defendants in error, manifest error hath happened to the great damage of the said Simon Mussina,"


The writ, it will be observed, did not say who was plaintiff below and who there defendants; though the description of the parties, as they appeared in this Court, was correct. The petition for the writ of error, as contained in the transcript of the record, describes the parties thus:

"In a certain cause wherein Maria Josefa Cavazos and Estefana

Page 73 U. S. 357

Goascochea de Cortina were plaintiffs and Simon Mussina defendant, a final judgment was rendered,"


The bond given by plaintiff in error described the parties in the same manner.

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