Although generally slow to overrule decisions of courts other
than those of the United States on questions of local practice,
this Court will do so where, as in this case, the court below
yields a consideration of the merits to form and takes too strict a
view of its own powers.
When an appeal is taken in open court, all parties are present
in fact or in law and have notice, formalities are not needed to
indicate that it is taken against all parties.
The requirement of a bond in the Court of Appeals of the
District of Columbia does not go to the essence of the appeal, and
the form should be objected to within twenty days, and where the
appeal was taken in open court, objections to the form of bond
cannot be taken on a motion to dismiss the appeal filed six months
after the appeal was taken based on defects in the appeal.
Although too late for an appeal to be dismissed on account of
the form of bond, if the proper parties are before the court, leave
can be given to file an additional bond if desired.
31 App.D.C. 92 reversed.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from a decree of the Court of Appeals of the
District of Columbia dismissing an appeal from a
Page 220 U. S. 91
decree of the Supreme Court. The bill was brought by the
appellee Leesnitzer, as one of the heirs of Thomas Taylor, for a
partition between herself and the other heirs of lands acquired by
Taylor after the execution of his last will. By the will, Taylor
left all his estate, both real and personal, to his widow, the
appellant.
See Bradford v. Matthews, 9 App.D.C. 438;
Crenshaw v. McCormick, 19 App.D.C. 494; D.C.Code ยง 1628
[31 Stat. 1433, c. 854];
Hardenbergh v. Ray, 151 U.
S. 112. The bill, of course, was adverse to the
appellant's right under the will, and also prayed that she might be
declared barred of her dower.
See Clark v. Roller,
199 U. S. 541,
199 U. S. 545.
After a trial, there was a decree for the plaintiff
"unless the defendant, Margaret E. Taylor, shall perfect her
appeal from this decree, which is prayed by her in open court and
allowed, by giving a supersedeas bond in the penal sum of
$1,000."
The decree was filed on May 28, 1907. On June 3, 1907, an appeal
bond was filed, but, in accordance with the rules, under ordinary
conditions, was not printed in the transcript of the record sent to
the Court of Appeals. The record was filed in that court on July
17, 1907. On February 12, 1908, the plaintiff Leesnitzer filed a
motion that the appeal be dismissed, because (1) Elizabeth E.
Padgett, an heir and one of the defendants,
"has not been joined either as an appellee or appellant or as a
party hereto; (2) that there has been no summons and severance, or
service of notification of appeal upon said Elizabeth E. Padgett.
Edmund Burke, solicitor for appellee."
This motion was granted, on the ground that Mrs. Padgett was not
made a party to the appeal.
Thereupon the appellant moved to modify the decree by allowing
the appellant to correct her appeal by citing the omitted parties,
and for such further proceedings as might be necessary to a
decision of the cause upon its merits. The court held that as Mrs.
Padgett had admitted the allegations of the bill, and had arrayed
herself
Page 220 U. S. 92
on the plaintiff's side, and as she had got all that she could
expect by the decree, the appellant did not need to obtain a
severance, but that the appeal should have been taken against her
as well as against the plaintiff, and that the supersedeas bond
should have run to both, which "an inspection of the bond in office
of the clerk below" showed not to have been the case. It was
objected that the court could not look beyond the record before it,
which, as we have indicated, contained only a memorandum that a
bond had been filed. But the record was entitled, "Margaret E.
Taylor, etc. v. Mary J. Leesnitzer," until within a few days before
the case was called for hearing, when the appellant
ex
parte caused the cover of the printed record to be changed so
as to name also Elizabeth E. Padgett and Franklin Padgett as
appellees. It was said that if the court should confine itself to
the record, the presumption was that the title of the appeal
followed the obligation of the bond. On this ground, the court,
with expressions of regret, considered itself not at liberty to
entertain a motion for leave to file an additional bond.
We generally are slow to overrule the decisions of courts other
than courts of the United States upon matters of local practice.
But. as the Court of Appeals unwillingly yielded a consideration of
the merits to what, in the circumstances, probably was little more
than form, we feel less hesitation than otherwise we might in
acting upon our opinion that it took too strict a view of its own
powers. The first decision went on the ground that Mrs. Padgett was
not made a party to the appeal, and, if we correctly understand the
second, it also seems to have stood on the same notion, deduced as
a conclusion from the form of the bond, as disclosed by inspection
or presumed. No other was open under the motion except one
discarded by the court, as we have shown, and no other was or was
likely to be taken by the Court of Appeals. But this ground cannot
be taken on the record,
Page 220 U. S. 93
because the decree in the Supreme Court states that an appeal
was prayed in open court.
When an appeal is taken in open court, it does not need the
formalities of ancient law to indicate that it is taken against all
adverse interests. All parties are present in fact or in law, and
they have notice then and there. No citation is required.
Chicago & P. R. Co. v. Blair, 100 U.
S. 661;
Brockett v.
Brockett, 2 How. 238. The requirement of a bond by
a rule of the Court of Appeals does not go to the essence of the
appeal, as is shown by the condition in the rule that the motion to
dismiss for want of one must be "made within the first twenty days
next after the receipt of the transcript in this Court." Rule X. As
the parties in this case had notice of the appeal, they were put
upon inquiry as to the scope of the bond, and if, as the Court of
Appeals says, there is a presumption that the title of the
transcript follows the obligation of the bond, they had actual
notice of its form. But the bond cannot create a retrospective
presumption as to the effect of the words spoken in open court on
the scope of the appeal. That was settled when the appeal was
claimed. It follows that no excuse is shown for not objecting to
the form of the bond within twenty days. The motion to dismiss was
not made until more than six months after the receipt of the
transcript, and then was not based on the defect of the bond, but
on supposed defects in the appeal. It was not made on behalf of the
party aggrieved by the omission from the bond. The time has gone by
when the appellant can be turned out of court because Mrs. Padgett
was not joined as obligee, but if, as we have tried to show, the
proper parties were all before the higher court, no doubt leave
would be given to file an additional bond if an amendment were
desired.
Decree reversed.