On the 6th of October, 1880, a decree was entered in a circuit
court of the United States dismissing a bill brought to quiet
title. Complainant appealed, and the appeal was dismissed at
October Term, 1850, it not appearing that the matter in dispute
exceeded $5,000. In the circuit court, W. then suggested the
complainant's death, appeared as sole heir and devisee, filed
affidavits to show that the amount in dispute exceeded $5,000, and
took another appeal August 30, 1881, which appeal was docketed here
September 24, 1881, and was dismissed April 5, 1884, for want of
prosecution. Another appeal was allowed by the circuit court in
September, 1884, and citation was issued and served, and the case
was docketed here again.
Held: that the decree appealed
from being rendered in 1880, an appeal from it taken in 1884 was
too late.
Bill in equity. Decree dismissing the bill. Complainant
appealed. The case is stated in the opinion of the Court.
Page 122 U. S. 364
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was a suit in equity begun by Richard E. Whitsitt, then in
life, and James Meskew, to quiet their possession of certain lots
in Denver, Colorado. A decree was entered October 6, 1880,
dismissing the bill. From that decree the complainants took an
appeal to this Court, which was dismissed at October term, 1880,
because it did not appear that the value of the matter in dispute
exceeded $5,000.
Whitsitt v. Railroad Co., 103 U.
S. 770. On the 20th of July, 1881, Emma C. Whitsitt
appeared in the circuit court and, suggesting the death of Richard
E. Whitsitt, asked to be made a party to the suit in his stead as
sole heir and devisee. An order to this effect was made, and she,
on the 30th of August, 1881, filed in the circuit court an
affidavit showing that the value of the matter in dispute did
exceed $5,000. On the same day, she took another appeal, which was
docketed in this Court September 24, 1881, and dismissed under Rule
16 April 5, 1884, for want of prosecution. The mandate from this
Court under this appeal was filed in the circuit court September 9,
1884, and the next day, September 10, Mrs. Whitsitt presented to
the district judge for the district of Colorado another appeal bond
in the suit, which he accepted, and he also signed a citation that
was duly served on the same day. This last appeal was docketed in
this Court September 22, 1884. When the case was reached in its
regular order on the docket at the present term, it was submitted
by the appellant on printed brief, no one appearing for the
appellee.
Section 1008 of the Revised Statutes provides that
"No judgment, decree, or order of a circuit or district court in
any civil action at law or in equity shall be reviewed in the
Supreme Court on writ of error or appeal unless the writ of error
is brought, or the appeal is taken, within two years after the
entry of such judgment, decree, or order,
provided that
where a party entitled to prosecute a writ of error or take an
appeal is an infant, insane person, or imprisoned, such writ of
error may be prosecuted, or such appeal may be taken, within two
years after the judgment, decree, or order, exclusive of the term
of such disability. "
Page 122 U. S. 365
This decree was rendered October 6, 1880, and the present appeal
was not taken until September 22, 1884, nearly four years
afterwards. There is no suggestion of disability such as would
bring the appellant within the proviso. The appeal should therefore
be dismissed,
Scarborough v. Pargoud, 108 U.
S. 567, and it is so ordered.
Appeal dismissed.
