Where the record, certified by the clerk of the circuit court,
states that an appeal from a decree in chancery was taken in open
court, no evidence dehors
the record can be received to
impeach its verity on a motion to dismiss the appeal for want of
jurisdiction upon the ground that the case has not been regularly
If the record is defective, the errors can be corrected in
Page 59 U. S. 531
The distinction pointed out between appeals which operate as a
supersedeas and those which do not.
If the evidence offered were received, it would not furnish a
sufficient reason for dismissing the appeal.
The appeal being taken orally in open court, an omission of the
clerk to enter it in the order book could not devest the party of
the enjoyment of his legal right to appeal.
The mode of removing a case from an inferior to an appellate
court is regulated by acts of congress, and does not depend on the
laws or practice of the state in which the court may happen to be
An appeal bond may be approved of by the judge out of court.
A motion was made to dismiss the first case upon the following
grounds, and was argued by Mr. Robinson and Mr. Pallon in support
thereof, and opposed by Mr. Johnson and Mr. Lyons.
The counsel for the motion filed the following certificate:
"I, Philip Mayo clerk of the United States Court for the Fourth
Circuit and Eastern District of Virginia, do certify that, in a
suit in chancery in the said court between Wyndham Kemp, assignee
in bankruptcy of John L. Hudgins, a bankrupt plaintiff, and Elliott
W. Hudgins and John L. Hudgins, defendants, a final decree was
rendered on the twenty-seventh day of June 1855; that the term of
the court at which the same was rendered ended on the twenty-eighth
day of that month; that afterwards in the vacation of the said
court, to-wit, on the 16th of October, 1855, there was filed in my
office a writing under the hand of R. B. Taney, Judge of the said
court, bearing date on the thirteenth of that month, whereby it
" Ordered that the appeal in this case, which was taken in open
court when the decree was pronounced, be entered accordingly on the
order book of the court of the last term, to-wit: of May term,
"that in view of this order, the clerk on its being so filed
wrote on the order book of the court, at the foot of the decree of
the 27th of June, 1855, the following words:"
" And from the foregoing decree the defendants prayed an appeal,
which was granted them on giving bond and security to be approved
by the court in double the amount of said decree, conditioned for
their prosecuting the said appeal,"
"and that at the time of filing the said vacation order of the
judge, there was also filed in the clerk's office bond and security
approved by the said judge in double the amount of said decree,
conditioned for their prosecuting the said appeal. Given under my
hand this 21st day of April, 1856."
"P. MAYO, Clerk
Page 59 U. S. 532
And then made the following points for dismissal:
I. It cannot take jurisdiction of the appeals as having been
allowed by the court, when the record as it stood at the end of the
term, and as it was then signed by the presiding judge, shows no
allowance of such appeals. In Burch &c. v. White,
Rand. 104, cited in 1 Rob.Pract. 642, old edit., it appeared that
at the preceding term the appeal was prayed and bond and security
then given; but the clerk of the court had omitted to enter on the
records thereof the appeal so granted. The Supreme Court of Appeals
of Virginia decided that this omission could not be remedied by an
amendment of the record made after the term had ended; and the
appeal was therefore dismissed. Though the appeal bond was filed
with the clerk, it was considered there was nothing in the record
to amend by. A fortiori,
it must be so in these cases,
when no appeal bond was given during the term; and there was
nothing whatever to amend by.
II. If the appeal had been duly allowed, the appeal bond has not
been properly given.
Under the act of Congress of March 3, 1803, 2 Story 905, appeals
are "subject to the same rules, regulations, and restrictions as
are prescribed in law in cases of writs of error." One of the rules
as to a writ of error is that it
"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."
1 Story 61, § 23; Wallen v.
7 Cranch 278. Now it is well established
that an appeal in chancery cannot operate as a supersedeas unless
the appeal be perfected by giving an appeal bond within the ten
days. Adams v.
16 How. 148. And it is clear that we are
entitled to process to carry these decrees into effect.
59 U. S. 17
How. 417. But perhaps it may be said that in other cases -- in
cases where there is no supersedeas -- the mode of taking the
security and the bond for perfecting it are matters of discretion
to be regulated by the court granting the appeal, and that when its
order is complied with, the whole has relation back to the time
when the appeal was prayed. The Dos
10 Wheat. 306. Still if we are to take
the regulation of the court granting the appeal from its order on
the record book of the court, even as it now appears, since the
alteration of the record, that order has not been complied with,
for according to that order, the appeal was granted on giving bond
and security, to be approved by the court, and the bond and
security given have not been approved by the court in term, but
only by the judge in vacation.
Page 59 U. S. 533
III. If the appeals could be allowed in vacation, and could in
these cases be regarded as so allowed, still the appeals would be
defective for want of citation and notice. Ex Parte
15 Pet. 119; Villabolos v. United
6 How. 90; Hogan v.
9 How. 602.
The propriety of the rules above insisted on is strikingly
illustrated by what in fact took place in these cases, for here the
assignee, immediately after the term was ended, procured copies of
the decrees; there was nothing either in these copies or in the
record itself to inform him of there being appeals, no such
information was afterwards obtained by means of citation or notice,
and he proceeded to make sale according to the decrees.
The counsel, in opposition to the motion to dismiss, filed the
"I, P. Mayo, Clerk of the United States Court for the Fourth
Circuit and Eastern District of Virginia, hereby certify that in
the case of Wyndnam Kemp, assignee in bankruptcy of John L.
Hudgins, against Robert Hudgins, John L. Hudgins, Elliott W.
Hudgins, and Albert G. Hudgins,
lately decided in the said
court, an appeal was granted the defendants from the decree entered
against them on the 27th of June, 1855, and that their said appeal
was entered among the minutes of the proceedings of that day, but
was omitted to be entered in the order book by the inadvertence of
the clerk, but was subsequently entered therein, as of the date
when entered in the minutes, by the order of CHIEF JUSTICE TANEY,
to-wit, Wednesday, June 27, 1855."
"Given under my hand this 23d day of April, 1856."
"P. MAYO, Clerk
"Filed 2d May"
"Nos. 239 and 240"
"In the Clerk's Office of the Circuit Court of the United States
for the Fourth Circuit and Eastern District of Virginia."
"I, P. Mayo, Clerk of the Circuit Court of the United States for
the Fourth Circuit and Eastern District of Virginia, do hereby
certify that the term of the said circuit court at which the cases
of Kemp, assignee v. Hudgins
were decided, adjourned the
next day after the decrees in those cases were entered, until the
next term of the court, and that the District Judge, the Hon. James
D. Halyburton, had previously declined to sit in those cases
Page 59 U. S. 534
he was a party interested in them. And I do further certify that
the bonds, required to be given on the appeals granted in those
cases, were filed in this office on the 16th day of October
"Given under my hand this 29th day of April, 1856."
"P. MAYO, Clerk
"Filed 2d May"
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case has been brought up to this Court by appeal from the
decree of the Circuit Court of the United States from the District
of Virginia, and a motion is made on behalf of the appellee to
dismiss it upon the ground that it has not been removed in the
manner the law requires and that therefore we have no jurisdiction
over it. And certificates and statements of the clerk outside of
the record and given since it was certified and transmitted to this
Court have been filed as evidence of the irregularity of the
This evidence is not admissible upon the present motion. The
record transmitted to this Court, certified by the clerk of the
circuit court, states that the appeal was taken in open court. This
is sufficient evidence of that fact. And upon a motion to dismiss
as well as on the hearing on the merits, no evidence
the record, as certified and returned by the clerk
of the circuit court, can be received here to impeach its verity or
to show that the certificate ought not to have been given. The case
as therein set forth is the case before this Court. And if from
inadvertence or mistake of the clerk of the court below or from any
other cause the record transmitted in this case is defective or
incorrect, the errors or omissions should have been suggested in
this Court and a certiorari moved to bring up a correct and true
transcript of the proceedings.
It is true an amendment may be made here by consent, as was done
in the case of Fletcher v.
6 Cranch 87. And so also, where it appeared
by the certificate of the clerk that he had committed a clerical
error in the transcript in the form in which he had entered a
judgment in ejectment and it was evident from the declaration that
it was a mere clerical error, the Court suffered it to amended here
without sending a certiorari to the circuit court to have it
corrected. Woodward v.
13 Pet. 1.
But in the case before us there is no consent to amend, and the
errors alleged are of a very different character from the mere
formal error in the case of Woodward v. Brown.
And if it
were otherwise, still there should have been a motion to amend by
inserting in the transcript the certificates above mentioned of
Page 59 U. S. 535
clerk, before the motion was made to dismiss. But no such motion
has been made, and the transcript now before the Court is the one
originally certified, without any amendment here by consent or by
order of the court. And the motion is made to dismiss the case not
for any irregularity apparent in the record, but by testimony
offered to show that the transcript is incorrect.
It is very clear that such testimony cannot be received to support
this motion. And the record as it stands when the motion is heard
presents the case which this Court is called upon to decide, and
nothing outside of it can be introduced to affect the decision.
Neither is it of any importance as concerns this motion whether
the appeal does or does not operate as a supersedeas. A writ of
error or appeal does not operate as a supersedeas under the act of
Congress unless security is given sufficient to cover the amount
recovered within ten days after the judgment or decree is rendered.
But yet if the party does not give the bond within the ten days, he
may nevertheless sue out his writ of error or take his appeal, as
the case may be, at any time within five years from the date of the
decree or judgment, upon giving security sufficient to cover the
costs that may be awarded against him in the appellate court. And
his omission to give the security in ten days is no ground for
dismissing the appeal.
In this case, certainly, the appeal did not operate as a
supersedeas. The security was given and approved long after the
time limited by the act of Congress. Nor was any supersedeas moved
for or awarded by the circuit court or the judge of the supreme
court who approved the bonds. Nor could any have been awarded by
any court or judge. And upon the expiration of the ten days, the
plaintiff had a right to proceed on his decree and carry it into
execution notwithstanding the pendency of the appeal in this
But if a supersedeas had been awarded, this motion could not be
sustained. The motion should have been to discharge the order, not
to dismiss the appeal. And the propriety or impropriety of an order
granting a supersedeas could not be considered on a motion to
dismiss. The order for the supersedeas might be discharged and the
appeal still maintained.
The decision of these points disposes of the motion. But in
order to avoid any further controversy on the subject, it is proper
to add that if the facts offered in evidence were inserted in the
record, they would furnish no ground for dismissing the appeal.
They are substantially as follows:
The district judge had an interest in the issue of the case, and
withdrew from the bench, and the chief justice of the supreme court
sat alone at the trial. The decree was passed on the 27th
Page 59 U. S. 536
of June, 1855, and the appellant on the same day, in open court,
appealed to this Court, and his appeal was entered by the clerk
among the minutes of the proceedings of that day, by order of the
Court, and on the next day, June 28, the Court closed its session
and adjourned to the next term.
It is the practice in the state courts of Virginia for the clerk
to make written minutes of the proceedings in court as they occur
during the day, and after the court adjourns for the day they are
all written out in full in what is called the order book, and
presented to the court when it meets next morning, and read, and if
found to be correct, is signed by the presiding judge, as evidence
that the proceedings are therein correctly stated. This practice
has been followed by the Circuit Court of the United States when
sitting in Virginia, and according to this practice it seems the
clerk supposed that the appeal ought to have been entered in the
order book, but omitted it through inadvertence and did not
discover the omission until after the term had closed. The fact was
brought to the attention of the chief justice by a certificate from
the clerk when the appeal bonds were presented for approval, which
was in October, 1855, and when he approved the bonds, he at the
same time sent a written direction to the clerk to enter the appeal
in the order book as having been made in open court and as of the
day when it was actually made and entered in the minutes. It may be
proper to say that the penalty of the appeal bond presented for
approval was much larger than necessary because, as the appeal
could not then operate as a supersedeas, the act of Congress
required such security only as would cover the costs of the
appellee in case the decree should be affirmed. But it certainly
could be no ground of objection when the bond was offered for
approval that the penalty was larger than it need have been.
These are the material facts as they appear in the certificates
of the clerk produced and relied on in the argument. And the
appellees contend that the order book is the only record of the
proceedings of the court, that this record could not lawfully be
amended by the order of the judge after the term was over, that the
entry of the appeal made by his direction is not legally a record,
and that as there is no record of an appeal in open court on the
27th of June, 1855, the clerk had no legal authority for certifying
that such an appeal was made, that his certificate on that account
is erroneous, and the case, therefore, is not removed to, and is
not in this Court according to law.
The counsel for the appellee, in support of these objections,
has referred to a decision of the Court of Appeals of Virginia and
to the practice in the courts of that state in case of appeal. The
answer, however, to this argument is obvious. The power
Page 59 U. S. 537
of making amendments and the mode of removing a case from an
inferior to an appellate court of the United States are regulated
by acts of Congress, and do not depend upon the laws or practice of
the state in which the court may happen to be held. The decisions
or practice of the courts of Virginia cannot therefore have any
influence in deciding the motion before us.
Neither is it necessary to inquire whether the entry made in the
order book is to be regarded as a part of the record -- or merely a
memorandum to preserve the history of the case, by entering the
appeal in the book where it is usually found, and would naturally
be looked for by the party interested. In either view, this entry
was not necessary to give validity to the appeal. In making the
appeal, the party exercised a legal right. It was made in open
court, and the clerk had official knowledge of the fact. And it
would have been his duty, even if no written memorandum of it had
been made, to certify it to this Court when the security was
approved by the judge and the appeal allowed. And his certificate
of the fact is all that is required in the appellate tribunal. He
does not certify it as a copy from the record. The appeal is made
orally, and the entry usually made on the minutes or in the order
book is to preserve the evidence of the act, and is not necessary
to give it validity.
The act of Congress does not require an appeal to be made in
open court -- or to be in writing -- or entered on the minutes of
the court -- or to be recorded. It is often made before a judge in
vacation, when it cannot be recorded in the order book as a part of
the proceedings of the court. And the law makes no difference, as
to the form in which it is to be made, whether it be taken in court
or out of court before a judge. In either case, it may be made
orally or in writing. And the only difference is that this Court
has decided that where the appeal is made in open court, during the
term at which the decree is passed, no citation is necessary to the
adverse party. He is presumed to be in court, and therefore to have
notice. But when the appeal is taken out of court, the citation is
necessary to give him notice. In all other respects, the same rules
apply to either mode of taking an appeal. Reilly v.
2 Cranch 344; Yestor v.
7 Pet. 220.
The Act of March 3, 1803, which authorizes the appeals, provides
that they shall be subject to the same rules, regulations, and
restrictions as are prescribed by law in cases of writs of error.
And in the case of Innerarity v.
5 How. 295, where the record transmitted to
this Court did not show that a citation had been issued and served,
it was held to be no ground for dismissing the case and that the
fact might be proved aliunde.
It is not necessary that all
of the steps required to give
Page 59 U. S. 538
this Court jurisdiction should even be on file in the court
below, and certainly need not appear to be of record in that court.
1 Wheat. 304.
We think it evident, therefore, that the want of record evidence
in the circuit court that the appeal was prayed would be no ground
of dismissal, and the certificate of the clerk that it was so
prayed is all that is required in this Court.
The objection that the entry on the minutes and also in the
order book required that the bond should be approved by the court
and that the approval by the judge out of court is therefore not
sufficient is equally untenable.
No copy of the order of the judge directing the entry in the
order book has been produced. But the clerk states in his
certificate that the order directed him to enter the appeal as of
the day on which the decree passed, and without doubt he states it
correctly. And in executing that order, he appears to have followed
the form he had adopted in his entry on the minutes. The same form
may perhaps be used in other circuits, and is in some cases
probably borrowed from the formulas used in like cases in the state
courts. But the appellant had legal rights, and he cannot be
deprived of them by any irregularity in a clerical entry. Strictly
speaking, nothing ought to have been entered either in the minutes
or on the order book as of the day the decree was passed except the
appeal itself. And this indeed would appear to have been all the
judge ordered. For the appeal could not have been allowed on that
day, because an order of a court or a judge allowing an appeal is
in effect nothing more than an order to send the transcript of the
record to the appellate court. It is the clerk's authority for
making the return to the superior court. And that order could not
be legally given until the security required by law was offered and
approved. But when the appeal was taken, the approval of the court
could not be made the only condition upon which it should be
allowed. He had a right by law to carry up his appeal if the
security he offered was approved by the judge out of court in
vacation, and no entry of the clerk, and indeed no order of the
court, could deprive him of this right. Neither could the amount of
the security be then prescribed. For he had a right to produce his
security within the ten days, if he desired to do so and thereby
supersede the judgment, until the decision of this Court was had in
the premises. And in order to obtain the supersedeas, the law
requires that the security given shall be sufficient to cover the
whole amount of the sum recovered against him. But if he preferred
carrying up his case without superseding, the law does not exact
security to the amount recovered. Security is required in that case
for no greater amount than will cover the
Page 59 U. S. 539
costs that may be recovered against him in the superior court.
Such were the legal rights of the appellant when he made his
appeal, and he cannot be deprived of them by the form adopted by
the clerk in entering it. The approval of the security by the
judge, as it appears in the certificates offered in evidence, is
sufficient, and the objection that it was not approved by the court
cannot be maintained.
Upon the whole, we see no ground for dismissing the appeal,
The motion to dismiss is overruled.