Porter v. Foley — 62 U.S. 393

Majority — TANEY C.J.

p. 393

James D. Porter et al., Plaintiffs in Error, v. Bushrod W. Foley.

Syllabus

This'court has already decided at the present term (see page Í95 of this volume) that a writ of error made returnable on- the third Monday in January, and the defendant in error cited to appear on that day, is irregular, and must be dismissed. •

A motion to remand the case to the,court below, with leave to amend the writ of • error and citation, cannot be granted. But if the plaintiff in error desires it, he may, in order to save expense, withdraw the transcript, and use it’ in connection with the proper and legal process to bring the case here.

This ease, was brought up from the Court of Appeals of

p. 394

Kentucky by a writ of error issued under tbe 25th section of the judiciary act.

A motion was made to dismiss the writ, upon the ground stated in the opinion of the court.

delivered the opinion of the court.

The writ of error in this case was issued on the 27th day of December last, and made returnable on the third Monday in January, and the defendant in error cited to appear on that day.

Jt has already been decided at the present term, in the case .of Insurance Co. of the Valley of Virginia 'v. Mordecai, that such a writ of error cannot be supported, and does not bring the case before the court.

A motion has been made, on behalf of the plaintiff in error, to remand the Case to the court below, with leave to amend the writ of error and citation. But, as the transcript stands, there is no cáse before us in which we can exercise a power of amendment. We-can do nothing more than dismiss it for . want of jurisdiction.

But if the plaintiff desires it, he may, in order to save expense, withdraw the transcript, and use it in connection with ■the proper and legal process to bring the case here; and if withdrawn, a receipt for it must be left with the clerk.

But as it now. stands, it must be dismissed for want of jurisdiction.