Wood v. Lide

The Chief Justice stated, that there had been some difference of opinion among the judges, which arose from their not understanding perfectly the facts of the case. If the writ of error had been served, when it was not in force (that is, after its return-day), such service would have been void. But if served, while in force, a return afterwards will be good. The service of a writ of error is the lodging a copy thereof for the adverse party, in the office of the clerk of the court where the judgment was rendered. (1 U. S. Stat. 86, § 23.) If it be so served, before the return-day, the service is good. In the case cited from 4 Dall., it does not appear which party made the motion, nor whether there was an appearance for the opposite party. In the present case, the writ of error having been served, when in full force, and the writ of error returned, although not at the first term, the appearance of the defendant in error has waived all objection to the irregularity of the return. The judgment was affirmed, (a) Footnotes [(a)] No notice was taken of the fact that the writ of error was served, before the judgment below was signed.