When an appeal is allowed in open court and perfected during the
term at which the decree or judgment appealed from was rendered, no
citation is necessary.
When an appeal is allowed at the term of the decree or judgment,
but is not perfected until after the term, a citation is necessary
to bring in the parties, but if the appeal be docketed here at the
next ensuing term, or
Page 150 U. S. 416
the record reaches the clerk's hands seasonably for that term,
and legal excuse exists for lack of docketing, a citation may be
issued by leave of court although the time for taking the appeal
has elapsed.
When an appeal is allowed at a term subsequent to that of the
decree or judgment appealed from, a citation is necessary, but it
may be issue, properly returnable even after the expiration of the
time for taking the appeal if the allowance of the appeal were made
before.
A citation is one of the necessary elements of an appeal taken
after the term, and if it be not issued and served before the end
of the next ensuing term of this Court, and be not waived, the
appeal becomes inoperative.
The case is stated in the opinion.
THE CHIEF JUSTICE.
Judgment in this case was rendered by the Supreme Court of the
Territory of Arizona, January 19, 1889, that the judgment of the
court below under review by that court be reversed, and the
complaint dismissed, with costs.
January 13, 1890, being one of the days of the next regular term
of the court, an appeal was prayed to this Court. The appeal was
allowed January 14, 1890, conditioned on giving bond, and certain
findings of the supreme court were filed that day. January 24,
1890, the required bond was approved and filed, and the record was
filed here March 14, 1890 at October term, 1889. No citation was
issued and served, nor has any appearance for appellee been
entered, nor is any waiver of citation shown.
It must be regarded as settled that: (1) where an appeal is
allowed in open court and perfected during the term at which the
decree or judgment appealed from was rendered, no citation is
necessary; (2) where the appeal is allowed at the term of the
decree or judgment, but not perfected until after the term, a
citation is necessary to bring in the parties; but if the appeal be
docketed here at our next ensuing term, or the record reaches the
clerk's hands seasonably for that term, and legal excuse exists for
lack of docketing, a citation may be issued, by leave of this
Court, although the time for taking the
Page 150 U. S. 417
appeal has elapsed; (3) where the appeal is allowed at a term
subsequent to that of the decree or judgment, a citation is
necessary, but may be issued properly returnable, even after the
expiration of the time for taking the appeal if the allowance of
the appeal were before; (4) but a citation is one of the necessary
elements of an appeal taken after the term, and if it is not issued
and served before the end of the next ensuing term of this Court,
and not waived, the appeal becomes inoperative.
Hewitt v.
Filbert, 116 U. S. 142;
Richardson v. Green, 130 U. S. 104;
Evans v. Bank, 134 U. S. 330;
Green v. Elbert, 137 U. S. 615.
Appeal dismissed.