This Court has no jurisdiction of an appeal unless the
transcript of the record is filed here at the nest term after the
taking of the appeal.
It is not proper, on a motion to dismiss an appeal from a
decree, to decide whether a prior decree was a final decree, or
what orders and decrees made by the court below in the cause prior
to the making of the decree appealed from can be reviewed here on
the appeal.
Where the decree appealed from awarded a money decree against
one defendant, and the plaintiff appealed, and the obligees named
in the appeal
Page 129 U. S. 171
bond included that defendant and other defendants, and that
defendant and some of the others moved to dismiss the appeal on the
ground that that defendant should be the sole obligee, and that the
only matter for review was as to the amount awarded against that
defendant,
held that the bond was in proper form, and that
the motion must be denied.
Motion to dismiss. The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
In this case, on the 8th of June, 1885, a decree was made by the
court below in the following language:
"This cause coming on for final hearing upon the pleadings,
depositions, and documentary evidence produced before the court,
and the cause having been argued by counsel, and the court being
sufficiently advised in the premises, it is ordered and decreed
that the complainant's bill be dismissed for want of equity as
against the defendants William C. Goudy, Volney C. Turner, George
Chandler, Samuel B. Chase, Ebenezer Buckingham, John De Koven, John
J. Johnson, S. S. Merrill, the North Chicago City Railway Company,
and the Chicago, Milwaukee and St. Paul Railway Company, with their
costs to be taxed by the clerk. It is further ordered and decreed
that so much of the complainant's bill as relates to the
certificate of one hundred and ten and two-thirds shares of the
capital stock, issued to A. B. Stickney & Company, dated
September 30, 1881, be dismissed for want of equity."
"It is further ordered and decreed that all relief be denied to
the complainant upon all matters and things in controversy herein
except as to the amount of money paid by the defendant William C.
Goudy for right of way, in execution of the contract between him
and A. B. Stickney & Company, of May 28, 1880, and, for the
purpose of ascertaining said amount of money, it is ordered that
this cause be retained as to the other defendants, and that it be,
and is hereby, referred to Henry W. Bishop, one of the masters in
chancery of this
Page 129 U. S. 172
court, to take additional testimony as to such amount, and that
he make report of the amount so paid, and that, on the making of
such report, such further decree will be rendered as may be
equitable."
"It is further ordered that for the better discovery of the
matters aforesaid, the parties are to produce before the said
master, upon oath, all deeds or books, papers and writings in their
custody, or power relating thereto, and are to be examined on oath
as the said master shall direct."
"And thereupon the complainant prays an appeal to the supreme
court, which is allowed upon his filing a bond in the penal sum of
five hundred dollars, with provisions required by law, and with
security to be approved by the court."
The bond thus referred to was not given, nor was the appeal
perfected, nor was the record filed in this Court at its October
term, 1885.
On the 14th of July, 1887, the master in chancery having made a
report in pursuance of the directions of the decree of June 8,
1885, and exceptions having been taken thereto by both parties, the
court made the following decree:
"It is ordered, adjudged, and decreed as follows,
viz.,
that the exceptions of both the complainant and the defendant the
Chicago and Evanston Railroad Company to the report of the master
in chancery, filed herein on the 31st day of January, 1887, be, and
the same are hereby, overruled, and the said report approved and
affirmed; that said Chicago and Evanston Railroad Company do
forthwith pay unto said complainant the sum of sixty-five hundred
and thirteen dollars ($6,513), together with interest upon the same
from the 30th day of January, 1887 at the rate of six percent per
annum, and also costs of said reference to the master, to be taxed
by the clerk of this Court, and also the costs of this suit, for
which plaintiff may have execution."
It is further ordered and decreed that all other relief prayed
in the complainant's bill be denied as against said defendant the
Chicago and Evanston Railroad Company, and that the complainant's
bill be dismissed our of court for want of equity as against the
remaining defendants, T. W. Wadsworth,
Page 129 U. S. 173
Edwin Walker, Elijah K. Hubbard, J. C. Easton, Julius Wadsworth,
Hugh T. Dickey, J. Millbank, James Stillman, James T. Wood ward, E.
L. Frank, William Rockefeller, Selah Chamberlain, and George Smith,
with their reasonable costs, to be taxed by the clerk, and that
they have execution therefor against the said complainant.
"And thereupon the complainant prays an appeal to the Supreme
Court of the United States, which is allowed upon his filing a bond
in the penal sum of five hundred dollars, with provisions required
by law, and with security to be approved by the court."
This appeal was perfected, an appeal bond was given, and the
record was filed in this Court on the 17th of October, 1887. The
obligors in that appeal bond are James J. Hill, W. P. Clough, and
E. Sawyer; the obligees are the Chicago and Evanston Railroad
Company, the Chicago, Milwaukee and St. Paul Railway Company, the
North Chicago City Railway Company, William C. Goudy, Volney C.
Turner, John De Koven, George Chandler, T. W. Wadsworth, Edwin
Walker, Elijah K. Hubbard, Samuel B. Chase, Ebenezer Buckingham,
John J. Johnson, J. C. Easton, S. S. Merrill, Julius Wadsworth,
Hugh T. Dickey, J. Millbank, James Stillman, James T. Woodward, E.
L. Frank, William Rockefeller, Selah Chamberlain, and George Smith.
The condition of the bond is as follows:
"Whereas lately at the July, 1887, term of the United States
Circuit Court for the Northern District of Illinois, in a suit
depending in said court wherein said James J. Hill was complainant
and the Chicago and Evanston Railroad Company and the other
above-named obligees of this bond were defendants, a decree was
rendered from which the said James J. Hill has taken an appeal to
the Supreme Court of the United States, now, the condition of the
above obligation is such that if the said James J. Hill shall
prosecute his appeal with effect, and answer all costs if he fails
to make his plea good, then the above obligation to be void;
otherwise to remain in full force and virtue."
Four motions are now made. One is a motion by the Chicago
Page 129 U. S. 174
and Evanston Railroad Company, T. W. Wadsworth, Edwin Walker,
Elijah K. Hubbard, and J. C. Easton, to dismiss as to each of them
the appeal from the decree of June 8, 1885, on the ground, among
others, that the transcript of the record was not filed in this
Court at October term, 1885. This motion must prevail. It is well
settled by repeated decisions of this Court that it has no
jurisdiction of an appeal unless the transcript of the record is
filed here at the next term after the taking of the appeal. The
appeal in the present case was prayed in open court on the 8th of
June, 1885.
Credit Co. v. Arkansas Central Railway
Company, 128 U. S. 258, and
cases there cited.
The second motion is by the North Chicago City Railway Company,
the Chicago, Milwaukee and St. Paul Railway Company, William C.
Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer
Buckingham, John De Koven, John J. Johnson, and S. S. Merrill to
dismiss as to each of them the appeal from the decree of June 8,
1885, on the ground, among others, that the transcript of the
record was not filed here at October term, 1885. This motion is
granted for the reason before stated.
The third motion is by the North Chicago City Railway Company,
the Chicago, Milwaukee and St. Paul Railway Company, William C.
Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer
Buckingham, John De Koven, John J. Johnson, and S. S. Merrill to
dismiss as to each of them the appeal from the decree of July 14,
1887, on the following grounds: (1) that the decree of June 8,
1885, was a final decree as to them, and (2) that the bond filed on
the appeal from the decree of July 14, 1887, does not show that it
was filed in pursuance of the decree of June 8, 1885, but recites
only an appeal from the decree of July 14, 1887. It is not proper,
on a motion to dismiss the appeal from the decree of July 14, 1887,
to decide whether the decree of June 8, 1885, was a final decree,
or what orders and decrees made by the circuit court prior to the
making of the decree of July 14, 1887, can be reviewed here on the
appeal from the latter decree. Those questions can only be
considered when that appeal shall come up for hearing on its
merits.
Page 129 U. S. 175
The fourth motion is by the Chicago and Evanston Railroad
Company, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, and J.
C. Easton to dismiss the appeal as to the decree of July 14, 1887,
on the ground that the Chicago and Evanston Railroad Company, being
the sole party against whom the decree of July 14, 1887, was
rendered ought to be the sole obligee in the appeal bond, the other
persons named in the bond as obligees not being parties to the
appeal; that the only matter which can be brought before this Court
for review is as to the amount fixed by the decree of July 14,
1887, and which the Chicago and Evanston Railroad Company was
adjudged to pay; that the decree of June 8, 1885, was final as to
the other questions, and that the appeal from the decree of July
14, 1887, should be limited to that decree, and proper orders, as
to bond and otherwise, to that end, should be made.
We see no objection to the terms of the appeal bond, in respect
of the parties named in it as obligees. It may very well be that
the appellant will seek, on the hearing of the appeal from the
decree of July 14, 1887, to obtain a decree against the persons
making this motion, and it cannot affect the validity of the bond
or the integrity of the appeal, either as respects the Chicago and
Evanston Railroad Company or the other parties making the motion,
that the bond runs to the obligees named in it. The motion must
therefore be denied in that respect, as it must also in regard to
the other grounds alleged for the motion, for the reason before
stated, that it is not proper, on a motion to dismiss the appeal
from the decree of July 14, 1887, to decide what questions may
properly be involved on the hearing of that appeal.
Ordered accordingly.