Kerr v. United States

Seventh Circuit

Kerr v. United States

159 F. 428, 86 C.C.A. 408, 1907 U.S. App. LEXIS 4051

Court of Appeals for the Seventh Circuit·Decided November 7, 1907·No. No. 1,379·Published·Cited by 1 cases

Opinion

PER CURIAM.

In this appeal review is sought of a judgment entered at law upon scire facias on a forfeited recognizance, with no writ of error issued. The doctrine is well settled that the Circuit Court of Appeals, alike with the Supreme Court, can review such proceedings at law only when brought by writ of error, and that no jurisdiction to that end arises through an appeal. See opinion of this court, in Stevens v. Clark, 62 Fed. 321, 10 C. C. A. 379, reviewing the authorities; also Muhlenberg County v. Dyer, 65 Fed. 634, 13 C. C. A. 64. The objection, therefore, cannot be waived by appearance, nor be cured by amendment. In the absence of a writ of error, the cases of City of Wilmington v. Ricaud, 90 Fed. 212, 32 C. C. A. 578, and Alaska United Gold Min. Co. v. Keating, 116 Fed. 561, 53 C. C. A. 655, and the provisions of section 1005, Rev. St. [U. S. Comp. St. 1901, p. 714], which are cited as authority for amendment, are inapplicable.

The appeal must be dismissed, and it is so ordered.

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PER CURIAM.

In this appeal review is sought of a judgment entered at law upon scire facias on a forfeited recognizance, with no writ of error issued. The doctrine is well settled that the Circuit Court of Appeals, alike with the Supreme Court, can review such proceedings at law only when brought by writ of error, and that no jurisdiction to that end arises through an appeal. See opinion of this court, in Stevens v. Clark, 62 Fed. 321, 10 C. C. A. 379, reviewing the authorities; also Muhlenberg County v. Dyer, 65 Fed. 634, 13 C. C. A. 64. The objection, therefore, cannot be waived by appearance, nor be cured by amendment. In the absence of a writ of error, the cases of City of Wilmington v. Ricaud, 90 Fed. 212, 32 C. C. A. 578, and Alaska United Gold Min. Co. v. Keating, 116 Fed. 561, 53 C. C. A. 655, and the provisions of section 1005, Rev. St. [U. S. Comp. St. 1901, p. 714], which are cited as authority for amendment, are inapplicable.

The appeal must be dismissed, and it is so ordered.

Kerr v. United States, 159 F. 428, 86 C.C.A. 408, 1907 U.S. App. LEXIS 4051 (7th Cir. 1907).

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