An appeal from a decree of a circuit court is not "taken" until
it is in some way presented to the court which made the decree
appealed from so as to put an end to its jurisdiction over the
An appeal taken in open court will not avail unless the appeal
is duly prosecuted.
When the time for taking an appeal has expired, it cannot be
arrested or called back by a simple order of court, such as
entering an order nunc pro tunc.
This cause was argued at length on its merits when it was
reached upon the docket. The point on which the cause was decided
was called to counsel's attention by the Court and is stated in the
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This was a bill filed by the appellant on the 15th day of April,
1882, to set aside a sale of the Arkansas Central Railroad, made by
the master in chancery on July 26, 1877, under a decree rendered in
the District Court of the United States
Page 128 U. S. 259
for the Eastern District of Arkansas at Helena on the 17th day
of March, 1877 at the suit of the Union Trust Company of New York
against the railroad company foreclosing a mortgage executed to
secure certain bonded indebtedness.
On January 22, 1883, a final decree was entered dismissing the
bill for want of equity. On the same day, to-wit, January 22, 1883,
an appeal to this Court was prayed for and allowed, but it was
never prosecuted, no bond being given, no citation issued, and no
return of the record being made to this Court at the ensuing term.
That appeal therefore ceased to have any operation or effect, and
cannot avail the appellant. Brooks v.
11 How. 207; The
19 How. 182; Castro v.
3 Wall. 46; Mussina v.
6 Wall. 355; Griggsby v. Purcell,
99 U. S. 505
The Tornado, 109 U. S. 110
State v. Demarest, 110 U. S. 400
Killian v. Clark, 111 U. S. 784
On the 22d day of January, 1885, exactly two years after the
entry of the decree, a petition for an appeal was presented by the
solicitor of the complainant to MR. JUSTICE MILLER, and allowed by
him. At the same time, JUSTICE MILLER signed a citation to the
defendants to appear in the Supreme Court of the United States at
the then next term thereof, to answer the appeal. A bond for costs
in the sum of $1,000 was also at the same time presented to and
approved by the same justice. These papers were not presented to
the circuit court nor filed with the clerk thereof until the 27th
day of January, 1885. On that day the following order was made an
entered in the case, to-wit:
"Comes N. & J. Erb and pray the court to enter an order
granting to the plaintiff an appeal in this cause to the Supreme
Court of the United States, which motion is denied, such appeal
having heretofore been granted. It is ordered by the court that
this entry bear date as of January 22, 1885."
And on the same day, the following order was entered in this
"Comes N. & J. Erb, attorneys for said plaintiff, and file
here in court a prayer for appeal to the Supreme Court of the
United States, and the allowance of said appeal by MR. JUSTICE
Page 128 U. S. 260
MILLER, on the 22d day of January, 1885; also a citation signed
by MR. JUSTICE MILLER, and bond for costs approved by said justice.
Which prayer for appeal to the Supreme Court of the United States,
and the allowance of said appeal by said justice, is as follows
[then copying the petition for appeal, the allowance, citation, and
bond; which papers were endorsed 'Filed Jan. 27, 1885. Ralph L.
This is all that is shown by the record in regard to the taking
of the appeal, from which it appears that the appeal was allowed by
JUSTICE MILLER on the last day on which an appeal could be taken,
but was not presented to the court below, nor filed with the clerk,
until five days after said time had expired.
The language of the statute is that
"No judgment, decree, or order of a circuit or district court,
in any civil action at law or in equity, shall be reviewed in the
supreme court on writ of error or appeal unless the writ of error
is brought or the appeal is taken within two years after the entry
of such judgment, decree, or order."
Rev.Stat. § 1008. It was decided in Brooks v.
11 How. 204, that "the writ of error is not
brought, in the legal meaning of the term, until it is filed in the
court which rendered the judgment." And Chief Justice Taney,
speaking for the Court, said:
"It is the filing of the writ that removes the record from the
inferior to the appellate court, and the period of limitation
prescribed by the act of Congress must be calculated accordingly.
The day on which the writ may have been issued by the clerk, or the
day on which it is tested, are not material in deciding the
This decision has always been adhered to. See Mussina v.
6 Wall. 355; Scarborough v.
Pargoud, 108 U. S. 567
Polleys v. Black River Co., 113 U. S.
The same rule is applicable to appeals as to writs of error.
Section 1012 of the Revised Statutes declares that
"Appeals from the circuit courts, and district courts acting as
circuit courts, and from district courts in prize causes, shall be
subject to the same rules, regulations, and restrictions as are or
may be prescribed in law in cases of error."
This provision applies to the time within which appeals may be
Page 128 U. S. 261
well as to other regulations concerning them. The San
2 Wheat. 132; Villabolos
v. United States,
6 How. 81; Brandies v.
Cochrane, 105 U. S. 262
appeal cannot be said to be "taken," any more than a writ of error
can be said to be "brought," until it is in some way presented to
the court which made the decree appealed from, thereby putting an
end to its jurisdiction over the cause and making it its duty to
send it to the appellate court. This is done by filing the papers,
the petition and allowance of appeal, where there is
such a petition and allowance, the appeal bond, and the citation.
In Brandies v. Cochrane,
it was held that in the absence
of a petition and allowance, the filing of the appeal bond, duly
approved by a justice of this Court, was sufficient evidence of the
allowance of an appeal, and was a compliance with the law requiring
the appeal to be filed in the clerk's office.
Of course, if the appeal is allowed in open court and entered in
the minutes, no further service is required. But as we have seen,
even such a mode of taking an appeal (called in the civil and canon
laws an appeal apud acta
) will not avail unless the appeal
is duly prosecuted.
The attempt made in this case to anticipate the actual time of
presenting and filing the appeal by entering an order nunc pro
does not help the case. When the time for taking an
appeal has expired, it cannot be arrested or called back by a
simple order of court. If it could be, the law which limits the
time within which an appeal can be taken would be a dead
The appeal must be dismissed, and each party pay its own