United States v. Curry
47 U.S. 106

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U.S. Supreme Court

United States v. Curry, 47 U.S. 6 How. 106 106 (1848)

United States v. Curry

47 U.S. (6 How.) 106

Syllabus

The 9th section of the Act of 26 May, 1824, relative to the action of the Attorney General in cases of appeal, is only directory, and its nonobservance does not vitiate an appeal provided it be taken by the district attorney and sanctioned in this Court by the Attorney General.

An attorney or solicitor cannot withdraw his name, after it has been entered upon the record, without the leave of the court, and the service of a citation upon him, in case of appeal, is as valid as if served on the party himself

The opinion of the Court to the case of Villabolos v. United States, ante, p. 48 U. S. 81, again asserted -- viz., that the appellant must prosecute his appeal to the next succeeding term of this Court, and whenever the appeal is taken by entering it in the clerk's office, the adverse party must be cited to appear at that time.

Therefore, where an appeal was filed in the clerk's office in November, 1846, and there was no citation to the adverse party to appear on 7 December, 1846 (the commencement of the succeeding term of this Court), the case was not removed upon that appeal.

A party may take a second appeal where the first has not been legally prosecuted. But to the present case the order of the court cannot be construed as a grant of a second appeal.

The appeal must therefore be dismissed on motion.

This was an appeal from the District Court of the United States for Louisiana involving the title to a large body of land in that state. The proceedings of the district court are sufficiently set forth in the opinion of the Court and in the argument of Mr. Curry, to which the reader is referred.

Page 47 U. S. 110

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