The meaning of the forty-third rule of this Court is that if a
judgment or decree in the court below be rendered more than thirty
days before the commencement of the term of this Court and the
record be not filed within the first six days of the term, the
appellee or defendant in error may docket the case and move for its
dismissal as the rule prescribes.
But if the judgment or decree of the court below be rendered
less than thirty days before the commencement of the term of this
Court, the rule does not apply.
MR. JUSTICE McLEAN delivered the opinion of the Court.
Page 48 U. S. 659
The bill was filed against the United States under the Acts of
June 17, 1844, and May 26, 1824, to try the validity of the
complainants' claims to certain lands in Mississippi. At the
November term of the district court, 1847, a decree was entered in
favor of the petitioners, and at the same term an appeal to the
Supreme Court of the United States was granted by the district
court, on the application of the defendants. An appeal thus allowed
requires no notice to the appellee. A motion is now made to dismiss
this appeal on the following grounds:
1. Because the appeal is not made to any specified term of the
Supreme Court.
2. Because it is not made returnable to the term of the Supreme
Court next following the decree.
3. Because the record is not filed at the term of the Supreme
Court next following the decree.
Under the act of 1824, the party against whom the decree is
entered may appeal within one year. On 14 March, 1848, a transcript
of the record was made out, and it was filed in this Court at the
present term. From the time this decree was entered to the
commencement of the ensuing session of the Supreme Court there were
less than thirty days. And under such circumstances it appears by
the forty-third rule that the appellant was not required to file
the transcript of the record in this Court at the first term.
The rule provides, that
"In all cases where a writ of error or an appeal shall be
brought to this Court from any judgment or decree rendered thirty
days before the commencement of the term, it shall be the duty of
the plaintiff in error or appellant, as the case may be, to docket
the cause and file the record with the clerk of this Court within
the first six days of the term."
If this be not done, the other party, on producing the proper
certificate, may have the cause docketed and the appeal or writ of
error dismissed.
The rule does not operate where a decree is entered less than
thirty days before the term of this Court, and consequently the
cause is not liable to be docketed and dismissed. The appellants,
under the circumstances of this case, are chargeable with no
neglect for failing to file the record with the clerk at the first
term of the Supreme Court after the decree was entered. The motion
to dismiss is
Overruled.
Order
On consideration of the motion to dismiss this cause, made by
Mr. Fendall, on a prior day of the present term of this Court,
to-wit, on Friday, the 2d instant, and of the arguments
Page 48 U. S. 660
of counsel thereupon had, as well in support of as against the
motion, it is now here ordered by this Court, that the said motion
be and the same is hereby overruled.
* MR. CHIEF JUSTICE Taney did not sit in this cause.