Fayolle v. Texas & Pacific R. Co., 124 U.S. 519 (1888)

U.S. Supreme Court

Fayolle v. Texas & Pacific R. Co., 124 U.S. 519 (1888) Fayolle v. Texas & Pacific Railroad Company

Submitted January 30, 1888

Decided February 6, 1888

124 U.S. 519

APPEAL FROM THE SUPREME COURT

OF THE DISTRICT OF COLUMBIA

Syllabus

This appeal having become inoperative through failure to docket the case here at the return term, and the excuse presented not being sufficient to give the appellants the benefit of the exceptions recognized in Griggsby v. Purcell, 99 U. S. 505, the court dismisses it.

The following motion to dismiss was made in the cause:

"The appellee in the above entitled cause, by W. D. Davidge and William H. Trescot, its solicitors, appearing specially for the motion, now moves the court to dismiss the said cause for the want of jurisdiction because "

Page 124 U. S. 520

"First. The transcript of the record was not filed in this Court, and the cause docketed at the term next after the appeal was prayed and allowed."

"Second. No citation was issued."

"W. D. DAVIDGE"

"WILLIAM H. TRESCOT"

"Solicitors for Appellee"

"The decree appealed from bears date November 12, 1883. On the same day, the appeal was prayed in open court and allowed. The transcript of the record was filed, and the cause docketed in this Court, January 17, 1887, more than three years after the appeal was prayed and allowed. The term of this Court next after the allowance of the appeal, and to which the appeal was returnable, ended May 4, 1885, when the court adjourned. The appeal then became functus officio and of no avail."

The following affidavit was filed by the appellant in answer to the motion:

"ANSWER OF THE APPELLANTS TO THE MOTION"

"Affidavit"

"UNITED STATES OF AMERICA"

"District of Columbia ss."

"JAMES COLEMAN, being duly sworn, doth depose and say:"

"That he was formerly of the firm of Carpenter & Coleman, consisting of Hon. Matt. H. Carpenter and himself, doing business in the City of Washington."

"That this deponent is informed and believes, that the said Matt. H. Carpenter was retained in the above entitled cause prior to such partnership. That he, the said Senator Carpenter, filed the bill in equity herein, and to the time of his death, in February, 1881, had the exclusive care, and management and control of the said cause."

"This deponent further says that subsequent to the death of Senator Carpenter, he was requested to take the appeal from

Page 124 U. S. 521

the order sustaining the demurrer in said cause to the Supreme Court of the United States. That he was not retained in said cause further than as aforesaid, and was requested to and did perfect said appeal more for the reason that it was unfinished business left by Senator Carpenter at the time of his death than any other."

"This deponent further says that in perfecting said appeal in the clerk's office of the district court, he found that many of the papers necessary to complete the transcript of the record in the cause had been lost or mislaid, and could not be found. That finally he was enabled to perfect said appeal by substituting for the lost papers others which were furnished him to enable him to perfect said appeal by the counsel for the defense, so that said appeal was perfected and the transcript of the record in the said cause ready to be filed in the Supreme Court on the 24th day of March, A.D. 1885."

"That at the time aforesaid, this deponent had an office in Wisconsin, and was then remaining in Washington mainly for the purpose of closing up the business of the said firm of Carpenter & Coleman."

"That after he had procured said appeal to be perfected as aforesaid, the deputy clerk of the said district court agreed with this deponent that he, the said clerk, would take the said record and file the same with the clerk of the Supreme Court, and this deponent, relying upon said agreement, left the same with him for that purpose, as he was then expecting to leave the city for Wisconsin, where deponent then resided."

"This deponent further says that his name appears on the docket of this Court as attorney of record in said cause, and he may have entered an appearance therein, but that if so, it was merely formal, as what he did in said cause was without fee or compensation, and that he, at the time he was requested to take said appeal, understood that it was the intention of the complainants to retain other counsel in the case who were familiar with the same. That as deponent was informed and believes, Hon. Jeremiah S. Black was counsel in said cause after Senator Carpenter's death, and remained such down to the time of the death of the said Jeremiah S. Black, which

Page 124 U. S. 522

this deponent is informed and believes occurred in the month of A.D. 1883."

"J. COLEMAN"

"Sworn and subscribed before me January 24, 1888."

"[L.S.] A. S. TAYLOR, Notary Public"

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

This motion is granted. The decree was rendered November 12, 1883. An appeal was taken at the same time in open court, returnable to our October term, 1884, which ended May 4, 1885, but it was not docketed here until January 17, 1886. That was too late, as the appeal had become inoperative through the failure of the appellants to docket the case here at the return term. Griggsby v. Purcell, 99 U. S. 505, and cases there cited; Killian v. Clark, 111 U. S. 784; Caillot v. Deetken, 113 U. S. 215. The excuse presented for the failure to docket in time is not sufficient to give the appellants the benefit of any exception to this rule, which was recognized in Griggsby v. Purcell, p. 99 U. S. 507. Neither does the case come within that of Edwards v. United States, 102 U. S. 575, because the transcript of the record was not lodged in the office of the clerk of this Court until after the return term of the appeal, and no attempt was made to get it upon the docket until another term had passed and still another had begun.

Dismissed.