Porter v. Foley, 62 U.S. (21 How.) 393

James D. Porter et al., Plaintiffs in Error, v. Bushrod "W. Foley.

This court has already decided at the present term (see page 195 of this volume) that a writ of error made returnable on the third Monday in January, and the defendant in error cited to appear on that day, is irregular, and must be dis missed.

A motion to remand the case to the court below, with leave to amend the writ of error and citation, cannot be granted. But if the plaintiff in error desires it,

This case was brought up from the Court of Appeals of

Kentucky by a writ of error issued under the 25th section of the judiciary act.

A motion was made' to dismiss the writ, upon the ground stated in the opinion of the court.

Mr. Chief Justice TANEY delivered the opinion of the court.

The writ of error in this case was issued oh the 27th day of December last, and made returnable on the third Monday in January, and the defendant in error cited to appear on that day.

It has already been decided at the present term, in the case of Insurance Co. of the Valley of Virginia v. Mordecai, that such a writ of error cannot be supported, and does not bring the case before the court.

A motion has been made, on behalf of the plaintiff in error, to remand the case to the court below, with leave to amend the writ of error and citation. But, as the transcript stands, there is no case before us in which we can exercise a power of amendment. We can do nothing more than dismiss it for want of jurisdiction.

But if the plaintiff desires it, he may, in order to save ex pense, withdraw the transcript, and use it in connection with the proper and legal process to bring the case here; and if withdrawn, a receipt for it must be left with the clerk.

But as it now stands, it must be dismissed for want of juris diction.