CITY OF WILMINGTON v. RICAUD, 90 F. 212

SIMONTON, Circuit Judge. The appellee interposes a motion to dismiss this appeal on the following grounds:

(1) That no petition for a writ of error has ever been filed or presented, but instead thereof a petition for an appeal.

(2) That no order has been made granting or allowing a writ of error, but the order made allows an appeal.

(3) That no bond accompanied the petition, and the bond filed subsequent to the order is without surety.

(4) That the citation was issued before any writ of error was allowed or issued. There can be no question that the only mode of giving this court jurisdiction for the correction of errors in a law case is by writ of error. An appeal cannot have this result. Brooks v. Norris, 11 How. 204, Barry v. Mercein, 5 How. 103; U. S. v. Curry, 6 How. 106. In Stevens v. Clark, 18 U. S. App. 584, 10 C. C. A. 379, and 62 Fed. 321, the law is stated. The supreme court and the circuit court of appeals possess no appellate power in any case, unless conferred upon them by act of congress.

Nor can such jurisdiction, when conferred, be exercised in any other form or by any other mode of proceeding than that which the law prescribes. Chief Justice Taney held in Sarchet v. U. S., 12 Pet. 143, that an action at law could not be brought to the supreme court by an appeal, but must come up on writ of error; in no other way could the court get jurisdiction. Bo, also, we have the same conclusion in Ballance v. Forsyth, 21 How. 389. See, also, Chase v. U. S., 155 U. S. 496, 15 Sup. Ct. 174; Nelson v. Huidekoper, 13 C. C. A. 658, 66 Fed. 616, and 30 U. S. App. 88; U. S. v. Fletcher, 8 C. C.

A. 453, 60 Fed. 53, and 8 U. S. App. 481; U. S. v. Tinsley, 25 U. S. App. 266, 19 C. C. A. 515, and 73 Fed. 369. In Ihe present case there is a writ of error, and it is in the record. It is true that the petition is for granting an appeal, and an appeal was allowed. But evidently both counsel and court did not understand that the word was used in its technical sense, but only as a review by an appellate court of the action of the trial court; for, when the prayer of the petition and the action of the court thereon were carried out, a writ of error was issued.

While it is the practice (and one which should never be departed from) to present a petition to the court when a review is desired, asking for a writ of error or an appeal, as the one or other is the appropriate remedy, sucb petition and tbe order tbereon are neither of them absolutely necessary. When tbe case comes up, tbe writ of error gives tbe court jurisdiction. Ex parte Ralston, 119 U. S. 613, 7 Sup. Ct. 317. In Trust Co. v. Stockton, 18 C. C.

A. 408, 72 Fed. 1, it is beld that a formal petition for tbe allowance of a writ of error is not requisite to tbe vesting of tbe jurisdiction in tbe circuit court of appeals. Therefore, when tbe writ was tested by tbe clerk of tbe circuit court, without the filing of any petition therefor, or tbe allowance thereof by any judge, but tbe judge subsequently, and within tbe time limited, signed a Tbill of exceptions and a citation, beld, that this was sufficient to give jurisdiction to the appellate court. Ex parte Virginia Com’rs, 112 U. S. 178, 5 Sup. Ct. 421; Davidson v. Lanier, 4 Wall. 453.

This ground for dismissing tbe writ cannot prevail. So also with tbe other ground, — tbe absence of a bill of exceptions. Tbe errors complained of are errors, if any, patent on the record. There is no disputed question of fact, nor any ruling on any question of fact. The only question in tbe case is one of law. No bill of exceptions was necessary. Plow Co. v. Webb, 141 U. S. 623, 12 Sup. Ct. 100; Baltimore & P. R. Co. v. Trustees of Sixth Presbyterian Church, 91 U. S. 127; Young v. Martin, 8 Wall. 354; Clinton v. Railway Co., 122 U. S. 469, 7 Sup. Ct. 1268. Tbe objections as to tbs bond cannot be sustained.

Tbe bond distinctly states that W. C. McQueens signs as surety. It was approved by tbe judge on 18th March, 1898, and tbe citation bears date tbe same day. Tbe notion is dismissed, with costs.