Where there are many parties in a case below, it is not
necessary for them all to join in the appeal bond. It is sufficient
if they all appeal and the bond be approved by the court.
No appeal lies from the refusal of the court below to open a
former decree. But if the court entertains a petition to open a
decree, the time limited for an appeal does not begin to run until
the refusal to open it, the same term continuing.
Where an appeal is prayed in open court, no citation is
necessary.
The case was not reached in regular order, but a motion was
made, under the rule, to dismiss the appeal under the following
state of facts.
Page 43 U. S. 239
A final decree was pronounced in the court below on 10 May,
1843, from which an appeal was prayed. A petition to reopen the
decree was filed during the term and referred to a master, who
reported on 9 June following. Upon his report the court refused to
open its former decree, and from this refusal, as well as from the
original decree, an appeal was prayed in which all the parties
joined. On 15 June, the bond was executed by three of the parties,
not being all.
Page 43 U. S. 240
MR. JUSTICE STORY delivered the opinion of the Court.
A motion has been made to dismiss this appeal upon several
grounds. The first is that although all the defendants have
appealed from the decree of the court below, yet a part of them
only have signed the appeal bond. This objection is not
maintainable. It is not necessary that all the defendants should
join in the appeal bond, although all must join in the appeal. It
is sufficient if the appeal bond is approved by the court as
satisfactory and complete security, by whomsoever it may be
executed.
The next ground is that an appeal has been taken from the
refusal of the court below to open the former decree, rendered for
the appellant. It is plain that no appeal lies to this Court in
such a matter, as it rests merely in the sound discretion of the
court below. And if this had been the sole appeal in the case, the
appeal must have been dismissed. But an appeal has also been taken
to the first decree (which was a final decree) rendered by the
court. That decree
Page 43 U. S. 241
was rendered on 10 May, 1843. During the same term, a petition
was filed by the defendants on the 26th day of the same month, to
have the final decree opened for certain purposes, and the court
took cognizance of the petition and referred it to a master
commissioner. His report was made on 9 June following, the same
term still continuing, and the court then refused to open the final
decree, and from this refusal as well as from the final decree the
defendants took an appeal and gave bond with sufficient sureties on
the 15th day of the same month, and the appeal was then allowed by
the court. Before that time, the court has not fixed the penalty of
the bond.
Now the argument is that as the original final decree was
rendered more than one month before the appeal, it could not
operate under the laws of the United States as a supersedeas or to
stay execution on the decree, because to have such an effect, the
appeal should be made and the bond should be given within ten days
after the final decree. But the short and conclusive answer to this
objection is that the final decree of 10 May was suspended by the
subsequent action of the court, and it did not take effect until 9
June, and that the appeal was duly taken and the appeal bond given
within ten days from this last period.
Another and the last ground of exception is to the want of
proper parties to the writ of error and citation. No writ of error
lies in this case, but an appeal only, and the appeal having been
made in open court, no citation was necessary.
Upon the whole, we are of opinion that the motion to dismiss
the appeal ought to be overruled, and it is accordingly
overruled.
