In order to act as a supersedeas upon a decree in chancery, the
appeal bond must be filed within ten days after the rendition of
the decree. In the present case, where the bond was not filed in
time, a motion for a supersedeas is not sustained by sufficient
reasons, and consequently must be overruled.
So also, a motion is overruled to dismiss the appeal upon the
ground that the real parties in the case were not made parties to
the appeal. The error is a mere clerical omission of certain
words.
Two motions were made in respect to this appeal, one by Mr.
Coxe
Page 57 U. S. 145
to dismiss the appeal and issue a
procedendo and the
other by Mr. Lawrence, on behalf of the appellants, for a writ of
supersedeas directed to the court below for the purpose of staying
the execution of the decree.
Mr. Coxe's motion was as follows:
"It is now moved by Richard S. Coxe, solicitor of Lloyd N.
Rogers, administrator of Elizabeth P. C. Law, deceased, and Edmund
Law Rogers and Eleanora A. Rogers, surviving children of Lloyd N.
Rogers and Elizabeth P. C. Law, his wife, and of the representative
of William Blane, deceased, that this appeal be dismissed."
"1. There is no case as above entitled, and the real parties
interested in the case of which a record is filed are not made
parties to this appeal -- namely the said Lloyd N. Rogers,
administrator &c., Edmund Law Rogers and Eleanora A. Rogers,
and the executors of William Blane, in whose favor the decree of
the circuit court appears to have been made."
"2. That it appearing from the certificate of the clerk of said
circuit court that an appeal was duly prayed by said appellants,
from the decree entered in this cause, and that it was duly
allowed, and an appeal bond, in the penal sum of $200, approved 9th
December, 1853, is the only appeal bond filed in the case, and such
bond does not appear to have been given to the party defendant, in
the above entitled case."
"And upon the facts appearing in the certificate of the clerk of
said circuit court, that no good and sufficient appeal bond has
been filed so as by law to operate as a supersedeas."
"And whereas it also appears as aforesaid that the said James
Adams, trustee, is and has been in contempt in consequence of his
neglect and omission to perform and obey the order of said circuit
court made on the 18th December, 1852, and that said circuit court
has omitted and neglected to enforce said order and decree against
the said James Adams, trustee as aforesaid, it is now further moved
by said solicitor that a writ of
procedendo do issue from
this Court, to be directed to the said circuit court, directing and
commanding said court to proceed forthwith to enforce, by
appropriate process, the said order and decree of said circuit
court."
Mr. Lawrence's motion was as follows:
"The appellants in this case, by their counsel, respectfully
submit to this Court"
"That in consequence of a mistake and surprise, the facts in
regard to which fully appear in the affidavits herewith filed, they
failed to file a supersedeas bond within ten days after the final
decree was entered therein in the circuit court; that the fund
Page 57 U. S. 146
in controversy is now in the hands of the trustee appointed by
the said court and securely invested to the satisfaction of all the
parties to said cause; that the said appellants have offered in the
said court to give bond in double the amount of the sums decreed to
be paid; that the parties to whom the said moneys have been decreed
to be paid reside out of the said District of Columbia, and the
circuit court has refused to grant the supersedeas on application
formally made in that court for that purpose, and thereupon they
move this Honorable Court for a writ of supersedeas to the Circuit
Court of the District of Columbia to stay execution of the decree
heretofore rendered by the said court in this cause, and from which
an appeal hath been prayed to this Court, on such terms as to your
Honors may seem meet."
MR. JUSTICE McLEAN delivered the opinion of the Court.
Page 57 U. S. 147
A motion is made by the appellant's counsel for a supersedeas on
the ground that the hearing of the case in the circuit court was
brought on irregularly and the decree entered in the absence of the
principal counsel for the defendants below; that by reason of this,
an appeal bond was not filed within ten days from the allowance of
the appeal.
Mr. May, who makes this motion, states that he is the
administrator of the estate of Thomas and Edmund Law, children of
John Law, who in their lifetime were parties to the suit, and that
he intended to appeal from the decree of the circuit court if
against him; that he had no notice of the cause being set for
hearing; that he left the United States on public business, and was
absent several months; that on his return he learned that a final
decree had been entered against him, and that he had authorized no
one to consent to the hearing of the cause out of its regular
course.
It appears that two other counsel who appeared for other
defendants, consented to the hearing in order that the cause might
be taken to the Supreme Court, for ultimate decision, and these
counsel understood the cause was to be appealed to the Supreme
Court by consent, and that security for the money decreed to be
paid would not be required. But both of these gentlemen state that
in giving their assent to the hearing, they did not represent Mr.
May, not being authorized to do so.
The suit in the circuit court was entitled, "Joseph E. Law by
his next friend, Mary Robinson v. Thomas Law and others, and James
Adams, executor of Thomas Law." The controversy arose under the
will of Thomas Law, deceased, and among other things the court
decreed that James Adams, the trustee in the cause, who had sold
certain property under the order of the court and had the proceeds
in his hands, exceeding the sum of sixty-one thousand dollars,
should pay over the money to the persons named in the decree, as
entitled to the same. This decree was entered the 18th day of
December, 1852, and an appeal to the Supreme Court of the United
States was prayed on the same day. An appeal bond in the sum of two
hundred dollars was filed the 9th of December, 1853.
The twenty-third section of the act of 1789 provides
"That a writ of error shall be a supersedeas, and stay execution
in cases only where the writ of error is served by a copy thereof
being lodged for the adverse party in the clerk's office where the
record remains, within ten days, Sundays exclusive, after rendering
the judgment or passing the decree complained of, until the
expiration of which term of ten days the execution shall not issue
in any case where a writ of error may be a supersedeas."
By the second section of the Act of March 3, 1803, appeals
are
Page 57 U. S. 148
declared to be "subject to the same rules, regulations, and
restrictions as are prescribed in law in case of writs of
error."
Under this provision, an appeal in chancery must be perfected by
giving an appeal bond within the ten days, to act as a supersedeas.
In
Wallen v.
Williams, 7 Cranch 278, the Court refused to quash
an execution issued by the court below to enforce its decree,
pending a writ of error, as the writ was not a supersedeas to the
decree. In
The Dos
Hermanos, 10 Wheat. 311, where the appeal was
prayed within the five years limitation, the appeal bond being
accepted by the Court after that period, was held good as having
relation to the time of the appeal. "The mode of taking security
and the time of perfecting it," the Court said, "are matters of
discretion, to be regulated by the Court." But this cannot apply to
a case where the appeal operates as a supersedeas. It must be
brought strictly within the provisions of the law.
The appeal in this case was prayed on the same day the decree
was entered, but the bond was not given until nearly a year
afterwards. The appeal must be perfected within the ten days after
the decree was entered to operate as a supersedeas. To supersede a
judgment at law, the writ of error must be filed and bond given
within the ten days. And the same rule is applied by the act of
1803 to appeals in chancery.
The case of
Hardeman & Perkins v.
Anderson, 4 How. 642, is relied on as an authority
under which a supersedeas may be issued in this case. In that case
it appeared from the record that the writ of error was issued and
bond given within ten days after the judgment, and that the clerk
of the district court promised to transmit the record to the
Supreme Court. It was transmitted, but by some delay was not
received until a few days after the adjournment of the Court, at
the ensuing term. Before the adjournment, a certificate of the
judgment having been obtained by the plaintiff's counsel, in the
judgment, on motion the cause was, under the rule of the Court,
docketed and dismissed. At the next term, on motion sustained by an
affidavit showing that the defendant in the judgment had not been
negligent in the cause, it was ordered to be docketed, and a writ
of supersedeas was issued not on the second writ of error which had
been issued, but to give effect to the first writ. After the
dismissal of the cause at the previous term, execution was issued
on the judgment, and it was necessary, after the cause was entered
upon the docket, to supersede that execution.
It does not appear from the facts in the case now before us,
that it can be brought within any decision of this Court. Whatever
may have been the understanding of the counsel who
Page 57 U. S. 149
appeared in the defense, in the circuit court, as to an appeal
of the case to the Supreme Court, by consent and without security,
it is not made to appear that the counsel of the complainants
assented to such an arrangement.
By the order of the circuit court, a copy of the decree was
served on James Adams, the trustee, and also a rule to show cause
why an attachment should not issue against him for not paying over
to the parties the sums of money as required by the decree. His
answer to the rule was filed, and a motion being made for an
attachment, it was taken under consideration, and has not yet been
decided.
This Court cannot presume that the circuit court, in the
exercise of their discretion, will take any step in regard to the
decree which shall place the fund at hazard or beyond the exercise
of the appellate powers of this Court.
The motion for a supersedeas, by the counsel for the plaintiffs
in error, is overruled.
The court also overrules, under the circumstances, the motion of
the defendant's counsel in error, for a procedendo.
A motion is also made by defendant's counsel to dismiss the
appeal on the ground
"that there is no case, as entitled on the record, and that the
real parties interested in the case, of which a record is filed,
are not made parties to the appeal."
After the decree was pronounced in the circuit court, the record
states: "From which decree an appeal was prayed to the Supreme
Court of the United States, on the 18th December, 1852, and to them
it was granted." The word "defendants" is omitted in this prayer,
but that must have been a clerical omission, as it appears the
appeal was "granted to them," that is to the defendants.
The title of the case, if incorrectly entered on the docket of
this Court, may and should be corrected by the record filed. There
is nothing in the record to show that the appeal by the defendants
was not prayed by all of them. The motion to dismiss is therefore
overruled.
Order upon the motion to dismiss
On consideration of the motion to dismiss this case, and for a
writ of
procedendo filed by Mr. Coxe in this case on the
16th ultimo, and of the arguments of counsel thereupon had, as well
against as in support of said motion. It is now here ordered by the
Court that said motion be, and the same is hereby overruled.
Order upon the motion for a supersedeas
On consideration of the motion for a supersedeas, filed by
Page 57 U. S. 150
Mr. Lawrence in this case on the 16th ultimo, and of the
arguments of counsel thereupon had as well against as in support of
the motion, it is now here ordered by the Court that said motion
be, and the same is hereby overruled.
