(50) Mordecai dismissed an appeal for want of jurisdiction when the lower court had misstated the first day of the Supreme Court's term on the writ of error
. (51) Yet the statute at issue, the Act of May 8, 1792, did not by its terms require that the writ of error
be made returnable on the first day of term--that requirement was a result of judicial gloss.
Second, the writ of error
was available only once a suit has reached final judgment "in the highest court of law or equity of a State in which a decision in the suit could be had...." (28) At its broadest, this language authorizes the Supreme Court to review even those cases--like Cohens itself--in which the state system provided no appeal at all.
(25) This revolutionary codification of civil procedure coincided with the creation of the New York Court of Appeals in an amendment to the New York State Constitution in 1846.26 Commentators note that the American and territorial experience postunification of law and equity was, broadly speaking, to follow more closely the writ of error
process than the equity appeal process:
On va y remedier radicalement avec les Judicature Acts (131), en donnant un grand coup de balai, en generalisant aux tribunaux de common law l'appel (qui remplace le writ of error
) et en s'inspirant de la procedure d'appel en Chancery, tout en corrigeant les lacunes et les vices les plus evidents dont etait affligee cette meme procedure d'appel en Chancery (132).
into execution, and no appeal or writ of error
from the [remand
On November 6, 2006, Trenkler wrote to the original trial judge arguing for reconsideration under a writ of error
(30)" Relying on these altered instructions, Waddell sought to define "appeal" in a broad generic fashion and pressed for an appeal in which the Provincial Council would review not only questions of law (as in the traditional "writ of error
" process) but would also reexamine the jury's factual determinations.
to require by certiorari, either before or after a judgment or decree by such lower court, that the cause be certified to the Supreme Court for determination by it with the same power and authority, and with like effect, as if the cause had been brought there by unrestricted writ of error
or appeal .
With the abolition of the writ of error
and the disappearance of the other procedural barriers that made appellate review of factual issues impracticable, the issue was brought into focus.
If a criminal defendant prevails on a federal law ground at the Supreme Court after losing in the state court, the appropriate remedy might be something like release from prison or a new trial, but the Supreme Court was given no authority to issue these kinds of remedies when hearing cases via writ of error
in state court cases.
Section 440.10(1)(b) of the New York Criminal Procedure Law is a partial codification of the writ of error
coram nobis, (10) an ancient English common law doctrine that the New York Court of Appeals rejuvenated in 1943 in Matter of Lyons v.
2d at 544 ("Certiorari is a discretionary common-law writ which, in the absence of an adequate remedy by appeal or writ of error
or other remedy afforded by law, a court of law may issue in the exercise of a sound judicial discretion to review a judicial or quasi judicial order or judgment that is unauthorized or violates the essential requirements of controlling law, and that results or reasonably may result in an injury which section 4 of the Declaration of Rights of the Florida constitution commands shall be remedied by the due course of law in order that right and justice shall be administered.") (Citation omitted).