Page:Federal Reporter, 1st Series, Volume 8.djvu/678

(564 FEDERAL REPORTER. �Rockafaller, 6 Eep. (Berton,) 226; Shook v, Rankin, 2 Cent. L. J. 731; Fisk V. Bailroad Go. 6 Blatchf. 362. �The cases, commencing with Villabolos v. U. S. 6 How. SI, and U. S. V. Curry, la. 106, and running numerously through the reports, ineluding Mussina v. Cavazos, 6 Wall. 355, and Edmonson v. Bloom- shire, 7 Wall. 306, relating to the exceedingly technieal rules of the supreme court governing the acquisition of jurisdietion by that court through a writ of error or appeal by the filing of the transcript, fur- nish the strongest analogy in favor of the motion to remand. But, as stated by Mr. Justice Miller in the last-mentioned case, the intel- ligible ground of these decisions is that the writ of error and the appeal are the foundations of the jurisdietion, without which there is no right to revise the action of the inf erior court, and that the writ of error, like all other common-law writs, beeomes functus officia unless some return is made to it during the term of the court to which it is returnable. A careful comparison of the language of the acts on which these decisions are made with that of the one we are now considering shows that they are not at all alike in respect of this matter of prescribing the time. Neither the act of 1789 (1 St. 84, § 22) nor of March 3, 1803, (2 St. 244, § 2,) prescribe any time for filing the writ of error or the transcript, They only adopt the com- mon-law mode of proceeding known as a writ of error, which was always returnable to the term of the appellate court next following the date of the writ, and it was here of the essence of the writ that it should be so ret.urnable in order that the court should aequire jurisdietion. But it will be seen, from an examination of all these cases in the supreme court, that a default did not have any such effect as that accompanying a failure to file a transcript in these removal causes if the time is held under the act to be essential. A new writ of error could be sued out, notwithstanding the misearriage of the first, at any time within the time prescribed by the statute of limita- tions, and the case be thus carried to the appellate court. The juris- dietion referred to by Mr. Justice Miller as founded on the writ of error that is lost by the failure to file the writ and transcript is not that over the subjeot-matter, but that over the parties, the writ and the citation being neeessary to bring them into the supreme court. Here, however, the statute does not call for any process, or prescribe any, to give this court jurisdietion of the parties to a removed cause, and we are not, as once before remarked, acting as an appellate or other supervisory tribunal into which process is neeessary to bring the parties. They are brought into the state court by process, and ��� �