Alviso v. United States

Mr. Justice NELSON delivered the opinion of the court. As the omission to return the citation appears to have arisen from the neglect of the clerk, if it had been shown *458 that it remained in the office, a certiorari would have been sent down on a prayer of diminution; but as -it has been satisfactorily proved to have been lost or destroyed, it is not a case for a certiorari. The Palmyra * is an authority for granting the relief sought at the succeeding term of the court in a case like the present. In that case, when the cause was called at the February Term, 1825, upon an inspection of the record, it did not appear from the transcript that there had been a final decree rendered in the court below, and for this reason the appeal was dismissed. At the next term, it having been shown the omission was the error of the clerk in making out the transcript, the cause was reinstated on the docket. Mr. Justice Story says, “ The reinstatement of the cause was founded, in the opinion.of the court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases.” Motion "granted. Footnotes [*] 12 Wheaton, 10.