John C. Sheppard and Others, in Error v. John Wilson, 46 U.S. 210 (1847)

46 U.S.
210
5 How. 210
12 L.Ed. 120
JOHN C. SHEPPARD AND OTHERS, PLAINTIFFS IN

ERROR,
v.
JOHN WILSON.
January Term, 1847
Mr. Grant moved to dismiss the writ of error in this case, upon two
grounds.
1st. Irregularity in the allowance of the writ of error, and the citation.
2d. That since the rendition of the judgment Iowa had become a State, and
cited 3 How., 534; 4 Id., 590.
Mr. C. Coxe opposed the motion. He stated that the writ of error had been
allowed, the citation signed, and bond approved, all by a judge of the
Supreme Court of the Territory of Iowa. He then referred to the acts of
1792 and 1838, and contended that there was no irregularity.
Mr. Hastings controverted these views, and sustained the motion to
dismiss.
Mr. Chief Justice TANEY delivered the opinion of the court.
This case is brought up by a writ of error to the Supreme Court of the Territory
of Iowa.
A motion has been made to dismiss it, upon the ground that the writ of error
was allowed, the citation signed, and the bond approved, by the chief justice of
the Territorial court, and not by one of the justices of a Circuit Court of the
United States, or a justice of the Supreme Court, as required by the act of 1789,
ch. 20, 22.
The act of 1838, ch. 96, 9, under which this writ of error is brought, provides
that writs of error and appeals from the final decision of the Supreme Court of
the Territory shall be allowed and taken to this court in the same manner and
under the same regulations as from the Circuit Court of the United States,
where the value in controversy shall exceed one thousand dollars. And the act
of 1789, which regulates writs of error from the Circuit Court, requires the
citation to be signed by a judge of the Circuit Court in which the judgment was
rendered, or by a justice of the Supreme Court; and that the judge or justice
signing the citation shall take good and sufficient security for the prosecution
of the writ of error, and the payment of the damages and costs if the plaintiff in
error shall fail to make his plea good. And the act of May 8, 1792, ch. 36, 9 (1
Stat. at L., 278), authorizes the clerks of the Circuit Court to issue writs of error
in the same manner as the clerk of the Supreme Court might have issued them
under the act of 1789.
Under these two last-mentioned acts of Congress, the judgment of a Circuit
Court may be brought up for re examination to the Supreme Court, by a writ of
error, issued by the clerk of the court in which the judgment was rendered, and
the citation may be signed and the bond approved by a judge of the said court.
And as the district judge is a member of the Circuit Court when sitting for his
district, he may sign the citation and approve the bond. The act of 1838 having
declared that writs of error may be prosecuted from the judgments of the
Supreme Court of the Territory of Iowa to this court, in the same manner and
under the same regulations as from Circuit Courts of the United States, it would
seem to be very clear that the writ of error may be issued by the clerk of the
Territorial court, and the citation signed and the bond approved by one of the
judges. This is the plain import of the words of the law; and we think they
cannot justly receive any other interpretation. There is certainly nothing in the
object and purpose of the act of Congress calculated to create any doubt upon
this subject, or to call for a different construction. For it can hardly be supposed
that Congress intended to deny to suitors in the Territorial courts the
conveniences and facilities which it had provided for suitors in the courts of the
United States when sitting in a State, and to require them to apply to the clerk
of the Supreme Court for a writ of error, and to a justice of the Supreme Court
to sign the citation and approve the bond, when these duties could be more
conveniently performed by the clerk and a judge of the court of the Territory,
and indeed far better and more safely performed, as regards the approval of
the bond, since the judge of the Supreme Court would have frequently much
difficulty in deciding upon the sufficiency of the sureties in a bond executed in
a remote Territory. The construction contended for would in its results be very
nearly equivalent to an absolute denial of the writ of error. We think it cannot
be maintained, and that the writ of error in this case was lawfully issued by the
clerk of the Supreme Court of the Territory, and the citation and bond properly
signed and approved by the chief justice of the court.

5
Another objection was taken upon the motion to dismiss. It was insisted, that,
Iowa having been admitted into the Union as a State since the writ of error
brought, the act of 1838, regulating its judicial proceedings as a Territory, is
necessarily abrogated and repealed; and consequently there is no law now in
force authorizing this court to re examine and affirm or reverse a judgment
rendered by the Supreme Court of the Territory, or giving this court any
jurisdiction over it. This difficulty has, however, been removed by an act of
Congress, passed during the present session (and since this motion was made),
which authorizes the Supreme Court to proceed to hear and determine cases of
this description.2 And as this objection no longer exists, and the writ of error,
citation, and bond appear to have been regularly issued, signed, and approved,
the case is legally and properly in this court, and the motion to dismiss must be
overruled.
ORDER.
6
On consideration of the motion made by Mr. Grant, on a prior day of the

present term, to dismiss this writ of error, and of the arguments of counsel
thereupon, had as well against as in support of the said motion, it is now here
ordered by this court, that the said motion be and the same is hereby overruled.
This is an error. The court refrained from pronouncing its opinion in this case,
and also in one from Florida, until Congress might pass an act to supply the
omission of previous legislation in relation to writs of error and appeals from
their Territorial courts upon judgments and decrees rendered before their
admission into the Union as States. An act was passed as the court understood,
with this view, and then the above opinion was given. But it appears, that,
owing, it is supposed, to some misapprehension, the act provides for Florida
and Michigan, and Iowa is not included in it. Act of Feb. 22, 1847, ch. 17.
There is, therefore, no law relating to Iowa.
This note has been shown to and approved by the Chief Justice, who delivered
the opinion of the court.

John C. Sheppard and Others, in Error v. John Wilson, 46 U.S. 210 (1847)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

John C. Sheppard and Others, in Error v. John Wilson, 46 U.S. 210 (1847)

Uploaded by

Copyright:

Available Formats

46 U.S.

JOHN C. SHEPPARD AND OTHERS, PLAINTIFFS IN

signed and approved by the chief justice of the court.

On consideration of the motion made by Mr. Grant, on a prior day of the

You might also like