In order to sustain a motion to docket and dismiss a case under
the forty-third rule of this Court, it is necessary to show, by the
certificate of the clerk of the court below, that the judgment or
decree of that court was rendered thirty days before the
commencement of the term of this Court.
Hence, where the certificate of the clerk stated that a final
judgment was pronounced at April term, 1850, it was not sufficient,
because non constat
that the April term might not have
been prolonged until December, 1850.
Mr. Cox filed the following motion and certificate.
"A certificate being produced from the District Court of Texas,
by which it appears that at the April term, 1850, of said court a
final decree was rendered by said court in favor of the defendants
and respondents, and that an appeal from said decree was prayed and
obtained by the libellants to the Supreme Court of the United
States -- and it appearing that the record in said case has not
been filed -- Mr. Coxe for said respondents and defendants moves
the court that the said cause be docketed and dismissed with
"COXE, for Defendants and Respondents
"United States District Court -- District of
"Henry W. Rhodes, Libellant v. Steamship Galveston, her Tackle,
Apparel, and Furniture, John R. Crane, master. Charles Morgan,
Israel C. Harris and Henry R. Morgan, Claimants and Respondents. --
"I, James Love, Clerk of the United States District Court for
the District of Texas, do hereby certify that at the April term,
1850, of said court, a final judgment or decree was rendered by the
Court here in the above-entitled cause, in favor of the defendants
and respondents, and that the libellant prayed and obtained an
appeal from the said final decree of the said district court to the
Supreme Court of the United States."
"In testimony whereof, I have hereunto set my hand and affixed
the seal of said court this 27 December, A.D. 1850."
"JAMES LOVE, Clerk
Page 51 U. S. 145
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made to docket and dismiss the case of
Henry W. Rhodes, libellant, against the steamship
Galveston and John B. Crane, master, and Charles Morgan and
others, respondents and claimants,
in which it appears that a
decree was rendered in the District Court of the United States for
the District of Texas against the libellant, and from which decree
he prayed an appeal.
The motion is made in behalf of the respondents and claimants
under the forty-third rule of this Court, and in support of the
motion they produce the certificate under seal of the clerk of the
district court stating that at the April term, 1850, a final decree
was rendered in the above-mentioned case in favor of the
respondents and claimants, and that the libellant prayed and
obtained and appeal to this Court. The certificate does not state
on what day the decree was made.
The rule referred to entitles a party, in a case like the
present, to have it docketed and dismissed where the decree was
rendered thirty days before the commencement of the term of this
Court, unless the appellant shall docket the case and file the
record within the first six days of the term. The record has not
yet been filed and the case docketed by the appellant. But in order
to entitle the appellees to docket and dismiss, they must show by
the certificate of the clerk that the decree was rendered thirty
days before the present term. The certificate produced states only
the term of the district court at which it was rendered, and not
the day. And it often happens that the term of a court continues by
adjournments from time to time for several months. For aught that
appears in this certificate, the April term, 1850, of the district
court may have continued until the meeting of this Court, and we
are not aware of any case that has been docketed and dismissed
under this rule, unless the day of the judgment or decree was
stated in the certificate. And as we have no evidence before us to
show how long the term of the district court continued or on what
day this decree was rendered,
The motion to docket and dismiss is overruled.
On the motion of R. S. Coxe, Esq., to docket and dismiss, under
the forty-third rule of this Court, the appeal in this case from
the District Court of the United States for the District of
On consideration of this motion, it is now here ordered by the
Court that the said motion be and the same is hereby overruled.