An original decree was made in the Circuit Court of Rhode Island
at June term, 1834, and an appeal was taken to January term, 1835,
of the Supreme Court. This appeal was dismissed at January term,
1837, on the motion of the counsel for the appellees, without an
examination or decision on the merits of the cause. At the November
term of the circuit court, the defendants prayed and were allowed a
second appeal to the Supreme Court, which appeal had not been yet
entered on the docket of the Supreme Court. The circuit court
afterwards proceeded to order execution of the decree of 1834, and
the defendant appealed to the Supreme Court from this decree. Held,
that this appeal from the decree of the circuit court ordering the
execution of the original decree is not a supersedeas to further
proceedings in the circuit court to execute the original decree,
and that the circuit court is at liberty to use its discretion to
proceed to execute the original decree.
Held also that the
decree of execution is not a final decree in the contemplation of
the act of Congress, from which an appeal lies.
In the Circuit Court for the District of Rhode Island, at June
term, 1834, in the case of Joseph Hoxie against Nathan Carr and
others, a decree was rendered for the complainant on a bill of
equity filed in that court. From this decree the defendants
appealed to the Supreme Court of the United States to January term,
1835. At January term, 1837, on motion of Mr. Green, of counsel for
the appellees, the appeal was dismissed and, a certificate thereof
having been sent to the circuit court, that court proceeded, at
November term, 1837, to order and decree the execution and decree
made at the June term, 1836. The court decreed a sale of the
property according to its decree of 1836, and that the proceeds
thereof should be brought into the registry, to be paid and applied
as ordered in and by the original decree.
From this decree the defendants prayed for an appeal to the
Supreme Court, which was allowed. The record brought up on this
appeal contained no part of the proceedings on the original bill,
in which there was a decree in 1834. It presented nothing but the
proceedings of the Circuit Court of Rhode Island, in November,
1837, and the decree of the Supreme Court of the United States
dismissing the appeal, and the decree of the circuit court in the
original suit, at June term, 1834, with the decree of the court on
5 November, 1837, ordering the execution of the same.
The proceedings in the original bill were not again brought up
to the Supreme Court by a second appeal in that case.
Page 38 U. S. 462
MR. JUSTICE STORY delivered the opinion of the Court.
This is an appeal from a decree in equity of the Circuit Court
for the District of Rhode Island, made in a case where the
appellant was the original defendant. The facts, as far as they are
now before us upon the present record and appeal, are briefly
these:
The original decree was made at the June term of the circuit
court, 1834, and at the same term an appeal was taken therefrom to
the Supreme Court. The appeal was entered at January term, 1835, of
the Supreme Court, and was dismissed for want of due prosecution at
January term, 1837. At the November term of the circuit court,
1837, a petition was filed by the original appellant praying for a
new and second appeal from the original decree, which was granted
by the court upon bonds' being given according to law. At the same
term, the original plaintiff prayed for further proceedings to
enforce the original decree, whereupon a supplemental decree was
passed by the court for a sale of the premises in controversy
pursuant to the original decree, and from this last decree the
original appellant also claimed an appeal, which was granted by the
court upon his giving bonds, and the case now comes before us
solely upon this last appeal, the record and proceedings in the
original suit not having as yet been brought up and filed in the
Court in pursuance of the second appeal from the original decree
already referred to. The question, therefore, whether this second
appeal lies to this Court after the dismissal of the former appeal
is not now before us, and can only arise when the original
proceedings shall come before us upon a due prosecution and entry
of the second appeal. The only question now before us is whether
this second appeal is, under the circumstances, a supersedeas to
all further proceedings in the circuit court to execute the
original decree. If it is, then the appeal from the supplemental
decree of sale is maintainable; otherwise it ought to be dismissed.
Upon full consideration, we are of opinion that it is no
supersedeas; that the circuit court is at full liberty, in its
discretion, to proceed to execute the original decree if it shall
deem it advisable, and that the supplemental decree of sale is but
a decree in execution of the original decree, and not a final
decree in the contemplation of the acts of Congress from which an
appeal like that now before us lies. It must therefore be
Dismissed with costs. But in order to guard against any
misapprehension, it is proper to add that this dismissal is in no
sense to be construed to prevent the original proceedings and
decree from being brought before this Court upon the second appeal
taken thereto in the circuit court for full consideration, whether
it lies or not.
Page 38 U. S. 463
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island and was argued by counsel. On consideration whereof,
it is the opinion of this Court that the supplemental decree of
sale in execution of the original decree in this case is but an
execution of the original decree, and not a final decree from which
an appeal lies to this Court. Whereupon it is ordered, adjudged,
and decreed by this Court that this appeal be and the same is
hereby dismissed with costs, and that this cause be and the same is
hereby remanded to the said circuit court with directions that the
said court may in its discretion proceed to execute the original
decree if it shall deem it advisable.
