Opinion
DECEMBER TERM, 1871.
1. A decree of the highest court of a State affirming an order of an inferior court, by which a motion to set aside a sheriff's return to an execution was allowed and an alias execution awarded, is not a "final judgment" within the meaning of the 22d section of the Judiciary Act, nor within the meaning of the 9th section of the organic act of the Territory of Montana, giving appeals from the Supreme Court of the Territory to this court. 2. Writs of error from this court must bear the teste of the Chief Justice.
Mr. F.A. Dick, contra.
MOTION, by Mr. Robert Leech, to dismiss a writ of error to the Supreme Court of Montana; the case being thus:
The 22d section of the Judiciary Act of 1789, gives writs of error to Circuit Courts of the United States from this court in cases of "final judgment," in certain cases specified.
Page 188 1 Stat. at Large, 84.
The 1st section of the act of September 29th, 1789, entitled "An act to regulate process in the courts of the United States," provides that "all writs and processes issuing from a Supreme or Circuit Court shall bear the teste of the Chief Justice of the Supreme Court."
Ib. 93.
The 9th section of the act of Congress organizing the Territory of Montana, approved May 26th, 1864, provides that "writs of error and appeals from the final decisions of the Supreme Court of said Territory, shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner, and under the same regulations, as from the Circuit Courts of the United States."
Page 189 13 Stat. at Large, 88, 89.
The present writ of error, as the record showed, was brought to revise the decision of the Supreme Court of the Territory of Montana affirming an order of the District Court of the Third Judicial District of the Territory, by which a motion to set aside a sheriff's return to an execution was allowed, and an alias execution awarded. The writ bore the teste of the clerk of the Supreme Court of the Territory of Montana.
Mr. Leech in support of his motion contended, that only "final judgments" could come here, and that what was brought here was not one; and that the teste should have been by the Chief Justice of this court.
We have often held that such orders as that which the Supreme Court of the Territory of Montana affirmed, are within the discretion of the inferior court. They are not final judgments, within the meaning of the Judiciary Act of 1789. Of course they are not within the meaning of the 9th section of the organic act of the Territory. It appears also that the writ of error bears the teste of the clerk of the Supreme Court of the Territory of Montana, and not the teste of the Chief Justice of this court. But the statute makes teste of the Chief Justice indispensable, and we have no power to change its requirements.
Cook v. Burnley, 11 Wallace, 676 Phillips's Practice, 66.
Page 189 13 Stat. at Large, 89.
Page 190 1 Stat. at Large, 93.
On both grounds, therefore, the writ of error must be
DISMISSED.