United States v. Baxter

51 F. 624, 2 C.C.A. 410, 1892 U.S. App. LEXIS 1316

Opinion

Sanborn, Circuit Judge,

delivered the opinion of the court.

The judgment in this case was rendered August 81, 1891; and while the writ of error was allowed by the acting circuit judge, February 8, 1892, it was, without fault of the district attorney, not actually issued until after March'6, 1892. .

No judgment or decree of the circuit court can be reviewed in this court upon writ of error unless the writ is sued out within six months after the entry of the judgment. 26 St. U. S. p. 826, § 11. In Brooks v. Norris, 11 How. 207, the supreme court, speaking by Chief Justice Taney, said:

“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 flling of the writ which removes the record from the inferior to the appellate court,'and the period of limitation must be calculated accordingly.”

’ And in Scarborough v. Pargoud, 108 U. S. 567, 2 Sup. Ct. Rep. 877, that'court, expressly decided thé very question presented in this case, and Held that where the”writ was allowed by the judge, but was not actually issued'by the clerk within the time limited for suing it out, the writ must be dismissed. Cummings v. Jones, 104 U. S. 419; Mussina v. Cavazos, 6 Wall. 355, 360. It follows that the writ of error in this case was not brought within the time limited by law, and this court is without jurisdiction. For this reason the writ is dismissed.