Carr v. Hoxie
38 U.S. 460 (1839)

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U.S. Supreme Court

Carr v. Hoxie, 38 U.S. 13 Pet. 460 460 (1839)

Carr v. Hoxie

38 U.S. (13 Pet.) 460

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF RHODE ISLAND

Syllabus

An original decree was made in the Circuit Court of Rhode Island at June term, 1834, and an appeal was taken to January term, 1835, of the Supreme Court. This appeal was dismissed at January term, 1837, on the motion of the counsel for the appellees, without an examination or decision on the merits of the cause. At the November term of the circuit court, the defendants prayed and were allowed a second appeal to the Supreme Court, which appeal had not been yet entered on the docket of the Supreme Court. The circuit court afterwards proceeded to order execution of the decree of 1834, and the defendant appealed to the Supreme Court from this decree. Held, that this appeal from the decree of the circuit court ordering the execution of the original decree is not a supersedeas to further proceedings in the circuit court to execute the original decree, and that the circuit court is at liberty to use its discretion to proceed to execute the original decree. Held also that the decree of execution is not a final decree in the contemplation of the act of Congress, from which an appeal lies.

In the Circuit Court for the District of Rhode Island, at June term, 1834, in the case of Joseph Hoxie against Nathan Carr and others, a decree was rendered for the complainant on a bill of equity filed in that court. From this decree the defendants appealed to the Supreme Court of the United States to January term, 1835. At January term, 1837, on motion of Mr. Green, of counsel for the appellees, the appeal was dismissed and, a certificate thereof having been sent to the circuit court, that court proceeded, at November term, 1837, to order and decree the execution and decree made at the June term, 1836. The court decreed a sale of the property according to its decree of 1836, and that the proceeds thereof should be brought into the registry, to be paid and applied as ordered in and by the original decree.

From this decree the defendants prayed for an appeal to the Supreme Court, which was allowed. The record brought up on this appeal contained no part of the proceedings on the original bill, in which there was a decree in 1834. It presented nothing but the proceedings of the Circuit Court of Rhode Island, in November, 1837, and the decree of the Supreme Court of the United States dismissing the appeal, and the decree of the circuit court in the original suit, at June term, 1834, with the decree of the court on 5 November, 1837, ordering the execution of the same.

The proceedings in the original bill were not again brought up to the Supreme Court by a second appeal in that case.

Page 38 U. S. 462

MR. JUSTICE STORY delivered the opinion of the Court.

This is an appeal from a decree in equity of the Circuit Court for the District of Rhode Island, made in a case where the appellant was the original defendant. The facts, as far as they are now before us upon the present record and appeal, are briefly these:

The original decree was made at the June term of the circuit court, 1834, and at the same term an appeal was taken therefrom to the Supreme Court. The appeal was entered at January term, 1835, of the Supreme Court, and was dismissed for want of due prosecution at January term, 1837. At the November term of the circuit court, 1837, a petition was filed by the original appellant praying for a new and second appeal from the original decree, which was granted by the court upon bonds' being given according to law. At the same term, the original plaintiff prayed for further proceedings to enforce the original decree, whereupon a supplemental decree was passed by the court for a sale of the premises in controversy pursuant to the original decree, and from this last decree the original appellant also claimed an appeal, which was granted by the court upon his giving bonds, and the case now comes before us solely upon this last appeal, the record and proceedings in the original suit not having as yet been brought up and filed in the Court in pursuance of the second appeal from the original decree already referred to. The question, therefore, whether this second appeal lies to this Court after the dismissal of the former appeal is not now before us, and can only arise when the original proceedings shall come before us upon a due prosecution and entry of the second appeal. The only question now before us is whether this second appeal is, under the circumstances, a supersedeas to all further proceedings in the circuit court to execute the original decree. If it is, then the appeal from the supplemental decree of sale is maintainable; otherwise it ought to be dismissed. Upon full consideration, we are of opinion that it is no supersedeas; that the circuit court is at full liberty, in its discretion, to proceed to execute the original decree if it shall deem it advisable, and that the supplemental decree of sale is but a decree in execution of the original decree, and not a final decree in the contemplation of the acts of Congress from which an appeal like that now before us lies. It must therefore be

Dismissed with costs. But in order to guard against any misapprehension, it is proper to add that this dismissal is in no sense to be construed to prevent the original proceedings and decree from being brought before this Court upon the second appeal taken thereto in the circuit court for full consideration, whether it lies or not.

Page 38 U. S. 463

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island and was argued by counsel. On consideration whereof, it is the opinion of this Court that the supplemental decree of sale in execution of the original decree in this case is but an execution of the original decree, and not a final decree from which an appeal lies to this Court. Whereupon it is ordered, adjudged, and decreed by this Court that this appeal be and the same is hereby dismissed with costs, and that this cause be and the same is hereby remanded to the said circuit court with directions that the said court may in its discretion proceed to execute the original decree if it shall deem it advisable.

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