The authority conferred by Rev.Stat. § 1000 to certify to the
responsibility of an obligor on an appeal bond cannot be delegated.
After close of term, citation must issue and be served before the
security can be approved and the appeal completed so as to give
jurisdiction above.
Page 109 U. S. 107
A receiver was appointed in a suit in equity commenced below for
the foreclosure of a railway mortgage. One Haskins, in the employ
of the receiver, struck his head on the timber of a bridge while on
duty on a train in motion, and was killed. Leave was granted to his
widow to prosecute her claim for damages in the foreclosure suit.
After hearing, the claim was disallowed. Appeal was taken, and the
case submitted by appellant, there being no appearance for the
appellees.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
We have no jurisdiction in this case. The appellee has not
appeared, and has never been served with a citation. The decree was
entered on the 14th of June, 1879, and at the foot of the entry is
the following: "Petitioner prays an appeal, which is granted upon
bond and security being given, according to law, within thirty
days." A copy of what purports to be an appeal bond, filed on the
3d of July, 1879, is found in the transcript, but there is no
evidence that it was ever approved or taken as good and sufficient
security by the court, or any justice or judge thereof. A
commissioner of the circuit court has certified that he knew the
obligors to be good and responsible for any cost that might accrue
in the cause, but that is not enough. Section 1000 of the Revised
Statutes requires the justice or judge signing the citation to take
the security. This power cannot be delegated to the clerk or to a
commissioner.
O'Reilly v. Edrington, 96 U.
S. 726. If the appeal is allowed in open court the
security may be taken by the court and no citation is necessary;
but if the security is not given until after the term is over, a
citation must be issued and served.
Sage v. Railroad Co.,
96 U. S. 715.
Unless an appellee voluntarily appears, we cannot proceed against
him if the record does not show affirmatively that he has been
brought within our jurisdiction by proper notice.
The appeal is dismissed for want of jurisdiction.