Jehiel Brooks, Plaintiff in error, v. Samuel Norris, 11 How. 204

Mr. Chief Justice TANEY delivered the opinion of the court. This case is brought .here by writ of error upon a judgment rendered in the Supreme Court of the State of Louisiana, and a motion has been made to dismiss the writ. It appears by the record that the judgment was rendered on the 25th of October, 1843. The writ of error by which the case is brought here was allowed by the chief justice of the State court, upon the petition of the appellant, on the 19th of October, 1848, and the bond also bears date on that day. But the writ of error was not issued until the 4th of November fol-.. lowing.

It was issued by the clerk of the court in which the judgment was rendered, and on .the same day, as appears by indorsement upon it, filed in that office by the counsel for the plaintiff in error. More than five years from the day of the judgment had therefore elapsed when this writ of error was filed. The act of 1789, chap. 20, § 22, provides that writs of error shall not be brought’but within five years after rendering or passing the judgment or decree complainéd of. 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 filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk; or the day' on which it is tested, are not material in deciding the question. In this case, therefore, five years had elapsed before the writ o.f error was brought, and the limitation of time in the act of Congress was a bar to the writ. According to the English practice, the defendant in error must avail himself of this defence by plea.

He cannot take advantage of it by motion: nor can the court judicially take notice of it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defence which the defendant in error may or may not rely upon, as he himself thinks proper. But according to the established practice of this court he need not plead it, but may take advantage of it by motion. The forms of proceeding in the English courts of error have never been adopted or followed in this court.

And either party, without any formal assignment of error or plea, may avail himself .of any objection which appears upon the record itself. In this case the bar arising from the lapse of time is apparent on the record, and the defendant may take advantage of it by motion to quash or to dismiss the writ. As this objection is conclusive, it is unnecessary to inquire whether the writ of error was allowed or issued by proper authority, or what previous defects may be cured by the appearance of the defendant in error.

The writ must be dismissed, upon the ground that it is barred by the limitation of time prescribed by the abt of Congress. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and on the motion of H. A. Bullard, Esquire, of counsel for the appellee, to dismiss this writ of error upon the ground that it is barred by the limitation of time prescribed by the act of Congress, and was argued by counsel. On consideration whereof, it is now. here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, with costs.