An appeal allowed in open court is of the date of its allowance,
and, to be kept in force, should reach this Court before the end of
the term to which it is made returnable.
An appeal being allowed in open court, leaving the amount of the
appeal bond to be settled afterwards, the acceptance of a bond by
the district judge after the expiration of the term at which the
decree was rendered, and without issue and service of citation,
does not operate as a new appeal as of the date of the acceptance
of the bond.
The appearance of an appellee by counsel, without citation at a
term after the term at which the appeal is returnable, and a motion
to dismiss the appeal for want of filing the transcript of the
record during the return term, do not waive the citation.
Bill in equity to foreclose a mortgage. A motion on behalf of
the appellee was made to dismiss the appeal for reasons stated in
the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This suit was brought to foreclose a mortgage given to secure
several alleged debts. On the d of April, 1884, the bill wad
dismissed on its merits as to the principal one of the debts and
some others, but as to the rest, and as to matters contained in a
cross-bill of the defendants, the cause was referred to a master to
find certain facts and state certain accounts. The complaint on the
same day prayed an appeal to this Court, which was allowed but
never docketed here.
Page 123 U. S. 726
On the 10th of October, 1885, the court, after overruling
certain exceptions to the master's report, entered a second and
last decree, which was against the complainant, for $14,084.77. At
the end of that decree was the following:
"And the complainant prays an appeal from the foregoing decree,
which appeal is by the court hereby allowed, and the penalty of the
appeal bond, if the same is to operate as a supersedeas, is fixed
at ___ dollars, but if the same is not to operate as a supersedeas,
then the penalty of the appeal bond is fixed at ___ dollars."
The next term of this Court thereafter began October 12, 1885,
and the appeal was not docketed here during that term.
On the 8th of February, 1886, there was filed in the office of
the clerk of the circuit court an order made by the district judge
at his chambers, and after the term at which the decree was
rendered, fixing the amount of the appeal bond at $20,000, if for
supersedeas, and at $2,000, if for costs only. On the 8th of March,
the complainant filed a motion to modify the amount of the appeal
bond. On the 8th of June, while this motion was pending, the
complainant filed with the clerk of the circuit court an appeal
bond dated March 1, 1886, in the penal sum of $25,000, which had
been approved by the district judge as a supersedeas bond. On the
2d of October, the motion to modify the amount of the appeal bond
was overruled by the court "on the ground that the case was then in
the Supreme Court of the United States." The case was docketed in
this Court October 15, 1886. It does not appear that any citation
has ever been signed or served.
This motion was made on the 8th of December, 1887, during the
present term, to dismiss the case
"because each of said appeals became null and void when the
return term of this Court passed without a transcript of the record
being filed in this Court and being docketed herein."
The first appeal taken in open court on the second of April,
1884, became inoperative by reason of the failure to docket the
same in this Court before the and of October term, 1884. Whether
the decree from which that appeal was taken was a final decree, or
interlocutory only it is unnecessary now to
Page 123 U. S. 727
consider. The appeal allowed in open court October 10, 1885,
also became inoperative, as it was not docketed here before the end
of October term, 1885, and this too whether the bond approved by
the district judge after the term was accepted to perfect that
appeal or not. If an appeal at all, it was of the date of its
allowance in open court, and to be kept in force it should have
reached here before the end of the term to which it was made
returnable.
Griggsby v. Purcell, 99 U. S.
505, and cases there cited.
The acceptance of the bond by the district judge cannot be
considered as the allowance of a new appeal at that date, because
that was after the term at which the decree was rendered, and no
citation was ever issued or served.
Hewitt v. Filbert,
116 U. S. 142. The
appearance of counsel for appellee at the present term on the
making of this motion is not a waiver of the citation. It would
have been different if there had been a general appearance at the
last term, that being the term to which the appeal, if it had been
properly taken, would have been returnable.
United States v.
Armejo, decided April 3, 1866, and reported in book 18
L.C.O.P.Co.ed.U.S.Sup.Ct.Reports 247.
The motion to dismiss is granted.