What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Writ

From lawbrain.com

An order issued by a court requiring that something be done or giving authority to do a specified act.

The development of English common law relied on the courts to issue writs that allowed persons to proceed with a legal action. Over time the courts also used writs to direct other courts, sheriffs, and attorneys to perform certain actions. In modern law, courts primarily use writs to grant extraordinary relief, to grant the right of appeal, or to grant the sheriff authority to seize property. Most other common-law writs were discarded in U.S. law, as the courts moved to simpler and more general methods of starting civil actions.

U.S. courts commonly use several extraordinary writs, which are issued only when the courts believe that usual remedies have failed. The writ of habeas corpus, sometimes called the "great writ," is probably the best-known example of a writ. A writ of habeas corpus is a legal document ordering anyone who is officially holding the petitioner (the person requesting the writ) to bring him into court to determine whether the detention is unlawful. A federal court can hear an application for a writ of habeas corpus by a state prisoner who is being held in custody, allegedly in violation of the U.S. Constitution or the laws of the United States.

The writ of mandamus is an extraordinary writ that directs a public official or government department to take an action. It may be sent to the executive branch, the legislative branch, or a lower court. The famous case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), which established the right of judicial review of congressional statutes, was an action for a writ of mandamus. William Marbury asked the court to issue the writ to Secretary of State James Madison, commanding him to deliver his judicial commission. The Court, however, refused to issue the writ of mandamus.

The writ of prohibition is another extraordinary writ and is the opposite of a writ of mandamus, because it commands a government official not to take a specified action. The most common use of the writ is by an appellate court to a lower court, commanding the lower court to refrain from a proposed action. For example, a trial court might grant a request by the news media to release information from a court file. A defendant who objects to the release could petition for a writ of prohibition from the court of appeals. If the appellate court issues the writ, the trial court may not release the information.

The writ of certiorari is an extraordinary writ issued by an appellate court that is used by that court when it has discretion on whether to hear an appeal from a lower court. If the writ is denied, the lower court decision remains unchanged. The U.S. Supreme Court has used the petition and writ of certiorari to control its caseload since 1925.

The extraordinary writ of quo warranto starts a proceeding in which the state challenges the legality of the use of an office, franchise, charter, or other right that can be held or used under authority of the state. For example, a writ of quo warranto would be used to remove a person who illegally holds public office, or to nullify an illegal amendment to a municipal charter.

A writ of attachment is a court order used to force obedience to another order or a judgment of the court. It was originally used to order a sheriff or law enforcement officer to take a disobedient party into custody and to bring her before the court to answer for the contempt. In modern law, a writ of attachment orders seizure of the defendant's property rather than the defendant's person to secure the satisfaction of a judgment that has not yet been secured. Modern law limits the scope and effect of attachment procedures to safeguard the defendant's rights to liberty and due process of law.

A writ of execution may be issued after a plaintiff wins a judgment in a civil case and is awarded damages. The writ directs the sheriff to take the property of the defendant in satisfaction of the court-imposed debt.

A writ of entry is an instrument used in an action brought to recover land wrongfully withheld from the true owner or tenant entitled to possession and use of the land. It establishes who is entitled to possession of a parcel of land but does not settle the issue of who is the true owner. The central inquiry is which of the two individuals has the superior right of possession and use of the land at the time of the action.

To determine the priority of the rights of the parties fighting over land, the court must consider how and when each individual acquired ownership or possession. In general, modern laws permit the recovery of monetary damages for rent or abuse of property, as well as recovery of possession of the land. The individual who has been in possession of the land may be compensated for any improvements he has made in the property.

The writ of entry is used in only a few states to recover the possession of land. It has been replaced by the action to recover possession of real property.

A writ of error is an order issued from an appellate court directed to the judge of a lower court, mandating the judge to release the trial record of an action in which the judge has entered a final judgment. The appellate court issues the writ so that it may review the case and either reverse, correct, or affirm the lower-court decision. Most states have replaced the writ of error with a simpler appellate document, usually called the notice of appeal.

See Also

Contributors

Admin