Where an appeal from a decree is taken within ten days from the
rendition of the decree, it is in time to operate as a supersedeas,
and so also if taken within ten days after the decree is settled
and signed.
There were two cases upon the docket, with precisely the same
caption, one numbered 54 and the other 106.
The case in question was the one numbered 106, which it was
moved to dismiss for the following reasons:
"And the said appellee comes into court at the December term
thereof, 1857, and moves the said Court to dismiss the appeal in
this cause, docketed as No. 106 at the said term upon the ground
that there had been previously taken by the said appellants an
appeal from the same portions of the decree made below which are
appealed from in this cause, and which prior appeal is still
pending and undetermined in this Court, and such motion will be
made upon the records filed in this cause, and in cause No. 54 on
the docket for December term, 1857."
"R. H. GILLET"
"December 18, 1857
Of Counsel for Appellee"
Page 61 U. S. 294
MR. JUSTICE NELSON delivered the opinion of the Court.
This is a motion to dismiss an appeal docketed as No. 106 on the
ground that a previous appeal, docketed No. 54,
Page 61 U. S. 295
had been taken by the same parties, and from the same portions
of the decree below. The final decision had been made by the court,
between the parties, on the coming in of the master's report on the
28th August, 1854, and an appeal duly taken on the 4th September
following. The decree was special in its terms, and was not settled
or signed by the judge till the 11th December, 1856, on which day
the second appeal was taken. As the appellant desired to appeal
within the ten days, so as to stay execution, the second appeal was
taken for abundant caution, as there might be a doubt from which
period the ten days should be counted -- namely the time of the
final decision of the court or of the signing and filing of the
special decree in form.
By the twenty-second section of the Judiciary Act, modified by
the second section of the Act of March 3, 1803, an appeal from a
final decree must be taken within five years after the
rendering or
passing of the judgment or decree
complained of. And by the twenty-third section, as modified above,
the appeal is a supersedeas, and stays execution in cases only
where it is taken and a copy lodged for the adverse party within
ten days, Sundays exclusive, after
rendering the judgment
or
passing the decree complained of. The
time to
be taken as when the judgment or decree may be said to be rendered
or passed may admit of some latitude, and may depend somewhat upon
the usage and practice of the particular court. In the case of a
simple judgment or decree, such as an affirmance or reversal and
the like, there would seem to be no difficulty in taking the appeal
at any time within the ten days after the decision on the case was
pronounced. But where the decree is special and its terms to be
settled, there is a propriety in waiting for its settlement before
taking the appeal. Whether taken or not may sometimes depend upon
the decree as settled. In the second circuit, with the practice of
which I am the most familiar, it is supposed by many of the
profession that the proper time for taking the appeal in such a
case is after the settlement of the decree. As this Court, however,
has always held that if an appeal is taken in court at the time of
rendering the decision or during the term, no citation is
necessary, and as appeals are perhaps more frequently taken within
the ten days after the decision is pronounced and entered on the
minutes by the clerk, it may be admitted that when thus taken, it
is regular, and stays execution in the court below. And we are also
of opinion that if taken within ten days after the decree is
settled and signed by the judge and filed with the clerk, that it
is in time to stay the proceedings. The recognition of the two
periods from which the ten days may be counted
Page 61 U. S. 296
becomes necessary on account of the difference in the modes of
proceeding and practice in the different circuits. This question
cannot arise in England, as the time for appeal runs two years from
the enrollment of the decree. 3 Dan.Pr. 131. The time of enrollment
cannot well be adopted by this Court, as on many of the circuits it
is understood, according to the practice, no enrollment of the
decree takes place.
As, upon our view of the case presented on the motion, the first
appeal was regular, the one taken and standing on the docket No.
106 should be
Dismissed.