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.

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Interpreting section 22 of the Judiciary Act of 1789, it held that the Supreme Court lacked jurisdiction to review a writ of error or appeal (31) unless: (1) the writ of error be returned by the end of the next term, (32) (2) the writ of error be signed by the lower court judge, (33) (3) an authenticated transcript be filed the next succeeding term after the appeal is taken, (34) and (4) the appeal be brought within five years.
The Supreme Court's quiet revolution: redefining the meaning of jurisdiction
The first feature of section 25 discussed below is that it provided for a writ of error in "any suit," not "any case" or "any suit or prosecution." As used elsewhere in the Act and as used by the same Congress, "suit" referred to civil cases only.
In the beginning there was none: Supreme Court review of state criminal prosecutions
Thus, what we term an appeal today resembles much more a writ of error than the word's original meaning.
The preservation rule in the New York Court of Appeals: how recent decisions and characterizations of the rule inform advocacy
La caracteristique universellement decriee de cette notion et de la procedure de writ of error tenait a ceci: elles exageraient au-dela de toute mesure raisonnable l'importance d'irregularites techniques (ou d'un legalisme obtus) en en permettant la revision au compte-gouttes, mais elles occultaient simultanement de reelles injustices qu'il etait impossible de corriger en raison des lacunes materielles du dossier.
Aspects historiques et analytiques de l'appel en matiere civile
Sir Edward Coke had put the matter thus in the following terms: In a writ of error to reverse and utlary, utlary in that suit, or at any stranger's suit, shall not disable the plaintife, because if he in that action should be disabled if he were outlawed at several men's suits, he should never reverse any of them.
Judicial review for the convicted felon in Australia--a consideration of statutory context and the doctrine of attainder
in 1875 by authorizing review by appeal or writ of error, thus switching
Collateral review of remand orders: reasserting the supervisory role of the Supreme Court
(1) In certain narrow circumstances, the rare writ of error coram nobis is a remedial petition primarily available to criminal defendants who want to challenge their convictions.
Criminal procedure
From 1703 to 1753, the royal instruction on appeals provided: "[o]ur will and pleasure is that appeals be permitted to be made in cases of error from the courts of our said province unto you and the council there." (29) The terminology "cases of error," by definition in common law practice, required the issuance of a writ of error. Also, the scope of the appeal--because it was a common law procedure--was limited to errors in law and could not involve any reconsideration of the factual determinations of the jury.
The legacy of Forsey v. Cunningham: safeguarding the integrity of the right to trial by jury
Under this provision, the Supreme Court's certiorari power was confined to those cases in which the judgment or decree of the circuit court of appeals was not reviewable by appeal or writ of error.
The law of unintended consequences: Supreme Court jurisdiction over interlocutory class certification rulings
As is commonly understood, this procedural device was concerned only with errors of law apparent on the face of the record.(8) The sufficiency of the evidence presented at trial was not open to review on writ of error.(9) Appellate courts also often denied review on the ground that the decision to grant or refuse a motion for a new trial was a matter wholly within the discretion of the trial courts.
Challenging federal appellate review of damage awards: lawyers should cite the forgotten second clause of the Seventh Amendment
Liebman persuasively demonstrates that "the commensurability and substitutability of writ of error and habeas corpus review" is reflected by the categories of cases in which the Court was willing to entertain federal habeas petitions of state prisoners.
Incorporating the suspension clause: is there a constitutional right to federal habeas corpus for state prisoners?
When the Supreme Court refused, in October 1983, to review Alger Hiss's petition for a writ of error coram nobis of his 1950 conviction on perjury charges, one of the most significant political trials in American history had finally come to an end.
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