Motion to dismiss an appeal. A decree was pronounced by the
District Court of the United States for the District of Alexandria
in December, 1829, from which the defendants appealed, but did not
bring up the record. At January term, 1832, the appellees, in
pursuance of the rule of court, brought up the record and filed it,
and on motion of their counsel the appeal was dismissed. On 9
March, 1832, a citation was signed by the chief justice of the
court for the District of Columbia citing the plaintiffs in the
original action to appear before the Supreme Court,
then in
session, and show cause why the decree of the circuit court
should not be corrected. A copy of the record was returned with the
citation "executed" and filed with the clerk. By the Court. "The
record is brought up irregularly, and the case must be
dismissed."
The act of March, 1803, which gives the appeal from decrees in
chancery, subjects it to the rules and regulations which govern
writs of error. Under this act, it has been always held that an
appeal may be prayed in court when the decree is pronounced. But if
the appeal be prayed after the court has risen, the party must
proceed in the same manner as had been previously directed in writs
of error.
The Judicial Act directs that a writ of error must be allowed by
a judge, and that the citation shall be returned with the record,
the adverse party to have at least twenty days' notice. This
notice, the Court understands, is twenty days before the return day
of the writ.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
Page 32 U. S. 221
In this case, a decree was pronounced by the Court of the United
States for the County of Alexandria in December, 1829, from which
the defendants in that court appealed, but did not bring up the
record. At January term, 1832, the appellees, in pursuance of a
rule of this Court, brought in the record, filed it, and moved that
the suit should be dismissed. The court ordered a dismissal. On 9
March, 1832, a citation was signed by the Chief Justice of the
court for the District of Columbia, citing the plaintiffs in the
original action to appear before the Supreme Court, then in
session, and show cause why the decree of the circuit court should
not be corrected. A copy of the record was returned with this
citation "executed," and filed with the clerk. The appellees move
to dismiss the suit because the record has been irregularly brought
up.
The Act of March, 1803, which gives the appeal from decrees in
chancery, subjects it to the rules and regulations which govern
writs of error. Under this act, it has been always held that a
decree may be prayed in court when the decree is pronounced, but if
the appeal be prayed after the court has risen, the party must
proceed in the same manner as had been previously directed in writs
of error. The Judiciary Act directs that a writ of error must be
allowed by a judge, and that a citation shall be returned with the
record, the adverse party having at least twenty days' notice. This
notice, we understand, is twenty days before the return day of the
writ of error. In this case, the appeal is not allowed by the
judge, and the citation is to appear before the court then sitting.
The record is brought up irregularly, and the cause must be
Dismissed.
On consideration of the rule granted in this cause and of the
arguments of counsel, as well for the appellants as for the
appellees, thereupon had, after mature deliberation, it is the
opinion of this Court that the record is brought up irregularly,
and that this appeal should be dismissed, whereupon it is ordered
and decreed by this Court that the appeal be and the same is hereby
dismissed with costs.
