Writ of error


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WRIT OF ERROR, practice. A writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the record; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. Ab. Error, in pr.
     2. The first is called a writ of error coram nobis or vobis. When an issue in fact has been decided, there is not in general any appeal except by motion for a new trial; and although a matter. of fact should exist which was not brought into the issue, as for example, if the defendant neglected to Plead a release, which he might have pleaded, this is no error in the proceedings, though a mistake of the defendant. Steph. Pl. 139. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram vobis. The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the coverture of either party, at the commencement of the suit, when her husband is not joined with her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.
     3. The second species is called, generally, writ of error, and is the more common. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail. Vide, generally, Tidd's Pr. ob. 43; Graham's Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322; 2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const. Law, ch. 5.
     4. In the French law the demande en cassation is somewhat similar to our proceeding in error; according to some of the best writers on French law, it is considered as a new suit, and it is less an action between the original parties, than a question between the judgment and the law. It is not the action which is to be judged, but the judgment; "la demande en cassation est un nouveau proces, bien moins entre les parties qui figuraient dans le premier, qu'entre l'arret et la loi." Henrion de Pansey, de l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8 vols.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit de juger, mais le jugement. Ib.
     5. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of any thing which is withheld from him, not when its operation is entirely defensive. 3 Story. Const. Sec. 1721. And it is considered generally as a new action. 6 Port 9.

References in periodicals archive ?
Section 25 authorized Supreme Court appellate review via writ of error in "any suit, in the highest court of law or equity," if the state court hearing the suit decided a question of federal law against the party relying on federal law.
The next chunk of statutory text to consider limits the state court suits in which a writ of error is available from the Supreme Court of the United States to those suits in which there has been a final judgment or decree "in the highest court of law or equity of a state in which a decision in the suit could be had.
1433, 1447-48 (2000) (referring to the development of the Kings Bench and comments on the importance of writs, including the writ of error, as a means of correcting inferior courts); cf.
18) See Pfander, supra note 16, at 1460-61 (distinguishing a writ of error and an appeal).
This provision further requires issuance of a citation signed by a judge sitting on a circuit court or a Supreme Court Justice, and it provides that "every justice or judge signing a citation on any writ of error .
It cannot entertain a writ of error, to revise the judgment of the Circuit Court, in any case where a party has been convicted of a public offence.
In illustration of the idea that the writ of error given by the judiciary act, when brought by the original defendant, has never been considered as the commencement or prosecution of a suit, the uniform, and I will add, the necessary, practice of the Supreme Court, in sustaining such writs of error where a suit would not be sustained, is referred to.
If this writ of error be a suit, in the sense of the amendment, it is not a suit commenced or prosecuted by a citizen of another state, or by a citizen or subject of a foreign state.
129) The Court, however, granted the motion to dismiss the writ of error, noting that the federal statute had been upheld by the state court.
Given that the plaintiff in error in Roosevelt relied on Clause 3 in his brief arguing against the motion to dismiss the writ of error, (137) one doubts that--as Field suggested in Trebilcock--the Court had in fact "overlooked" Clause 3.
Again, military trial practitioners will almost never have to file a writ of error coram nobis because the writ requires discovery of new evidence that could not have been discovered before the original judgment, or that a change in the law would affect the outcome of the court-martial.
Trial practitioners will not generally use the writ of error coram nobis because the writ invites the court's attention to new facts or evidence that were not known at the time of trial.