1. If it is apparent from the record that this Court has not
acquired jurisdiction of a case for want of proper appeal or writ
of error, it will be dismissed although neither party ask it.
2. An appeal or writ of error which does not bring to this Court
a transcript of the record before the expiration of the term to
which it is returnable is no longer a valid appeal or writ.
3. Although a prayer for an appeal, and its allowance by the
court below, constitute a valid appeal though no bond be given (the
bond being to be given with effect at any time while the appeal is
in force), yet if no transcript is filed in this Court at the term
next succeeding the allowance of the appeal, it has lost its
vitality as an appeal.
4. Such vitality cannot be restored by an order of the circuit
court made afterwards accepting a bond made to perfect that appeal.
Nor does a recital in the citation, issued after such order, that
the appeal was taken as of that date revive the defunct appeal or
constitute a new one.
The Judiciary Act provides that final decrees in a circuit court
may be reexamined, reversed, or affirmed here
"upon a writ of error whereto shall be annexed and returned
therewith, at the day and place therein mentioned, an authenticated
transcript of the record, and assignment of errors, and prayer for
reversal, with a citation to the adverse party."
It further enacts that
"Writs of error shall not be brought but within five years after
rendering or passing the judgment or decree complained of, or in
case the person entitled to such writ of error be a
feme
covert &c., then within five years as aforesaid, exclusive
of the time of such disability. "
Page 74 U. S. 307
By an amendatory act, appeals in cases of equity are allowed
"subject to the same rules, regulations, and restrictions as are
prescribed in law in case of writs of error."
With these provisions of law in force, John Edmonson, Littleton
Waddell and Elizabeth, his wife, filed a bill in 1854 in the court
below against Bloomshire and others to compel a release of title to
certain lands, and on the 16th July, 1859, the bill was finally
dismissed. On the 26th May, "an appeal to the Supreme Court of the
United States was allowed," and the appellants ordered to give bond
in $1,000. No further step was taken in the case till November 14,
1865, when a petition was filed in the circuit court reciting the
decree and the allowance (May 26, 1860) of the appeal and setting
forth the death of the plaintiff Edmonson intestate on the 30th
June, 1862, leaving a part of the petitioners his only
heirs-at-law, and that, on the 20th June, 1864, the plaintiff
Elizabeth Waddell also died intestate leaving the other petitioners
her only heirs-at-law, and that the interest of said intestates had
descended to said petitioners as their respective heirs-at-law, and
further setting forth that no appeal bond had been given under said
order allowing the appeal. The prayer of the petition was that the
petitioners be allowed "to become parties to the appeal and to
perfect the same by now entering into bond for the appeal."
Thereupon, on the same 14 November, 1865, this entry was made by
the court:
"WADDELL, EDMONSON"
"v. 426 -- Petition to perfect appeal"
"BLOOMSHIRE"
"And now come the said petitioners, and the court being
satisfied that the facts set forth in said petition are true and
that the prayer thereof ought to be granted, do order that said
petitioners [naming the heirs of Edmonson], be admitted as parties
plaintiff in the place of said John Edmonson, deceased, and that
the said [naming the heirs of Mrs. Waddell], be admitted as parties
plaintiff in the place of the said Elizabeth Waddell, deceased; and
that said petitioners have leave to perfect said
Page 74 U. S. 308
appeal
so allowed at the June Term, 1859, of this
Court, by giving bond in the sum of $1,000, as therein
provided."
An appeal bond was accordingly filed with and approved by the
clerk November 22, 1865. A citation (duly served) was issued on the
8th December, 1865, reciting
the allowance of an appeal at the
October Term, 1865, of the court and citing the appellees to
appear "at the next term of the Supreme Court, to be holden on the
first Monday of December next." The transcript was filed here by
the appellants for the first time on the 3d of January, 1866.
The case having been fully argued on the merits by Messrs.
Stanbery and Baldwin for the appellants and by Mr. J. W. Robinson
by brief,
contra, it was suggested from the bench that
doubts were entertained by it as to the jurisdiction of the Court
over the case, the ground of the doubt, as the reporter understood
it, being that while the record showed that the only appeal asked
for or allowed was that of May 26, 1860, the transcript was not
filed during the term next succeeding the allowance of the appeal,
nor till January, 1866, and thus that while the appeal had been
taken in time, the record had not been filed here in time to save
it.
Page 74 U. S. 309
MR. JUSTICE MILLER delivered the opinion of the Court.
In the cases of
Villabolos v. United States, and
United States v. Curry, decided at the December Term 1847,
and especially in the latter case, it was held, on full
consideration, that whether a case was attempted to be brought to
this Court by writ of error or appeal, the record must be filed
before the end of the term next succeeding the issue of the writ or
the allowance of the appeal, or the Court had no jurisdiction
of
Page 74 U. S. 310
the case. This was repeated in
The Steamer Virginia v.
West, [
Footnote 1]
Mesa v. United States, [
Footnote 2] and
United States v. Gomez. [
Footnote 3]
In
Castro v. United States, [
Footnote 4] the same question was raised. The
importance of the case, together with other considerations, induced
the Court to consider the matter again at some length. Accordingly,
the present CHIEF JUSTICE delivered an opinion, in the course of
which the former cases are considered and the ground of the rule
distinctly stated.
Other cases followed that, and in
Mussina v. Cavazos,
decided at the last term, the whole doctrine is again reviewed, and
the rule placed distinctly on the ground that this Court has no
jurisdiction of the case unless the transcript be filed during the
term next succeeding the allowance of the appeal. The intelligible
ground of this decision is that the writ of error and the appeal
are the foundations of our jurisdiction, without which we have no
right to revise the action of the inferior court; that the writ of
error, like all other common law writs, becomes
functus
officio unless some return is made to it during the term of
court to which it is returnable; that the act of 1803, which first
allowed appeals to this Court, declared that they should be subject
to the same rules, regulations, and restrictions as are prescribed
in law in writs of error. These principles have received the
unanimous approval of this Court, and have been acted upon in a
large number of cases not reported, besides several reported cases
not here mentioned. And the Court has never hesitated to act on
this rule whenever it has appeared from the record that the case
came within it, although no motion to dismiss was made by either
party. In fact, treating it as a matter involving the jurisdiction
of the Court, we cannot do otherwise.
In the case of
United States v. Curry, Chief Justice
Taney, answering the objection that the rule was extremely
technical, replied that nothing could be treated by this Court as
merely technical, and for that reason be disregarded, which
Page 74 U. S. 311
was prescribed by Congress as the mode of exercising the Court's
appellate jurisdiction. We make the same observation now, and add
that it is better, if the rule is deemed unwise or inconvenient, to
resort to the legislature for its correction than that the court
should depart from its settled course of action for a quarter of a
century.
We are of opinion that the present case falls within the
principle of these decisions. The only appeal that this record
shows to have been either asked for or allowed was that of May 26,
1860. The transcript was not filed during the term next succeeding
the allowance of this appeal, nor until January, 1866.
Two grounds are assigned as taking the case out of the rule we
have stated.
1. It is said that the appeal of 1860 was not perfected until
the bond was given under the order of November 14, 1865, and that
until this was done there was in fact no appeal which required the
transcript to be filed.
The answer to this is that the prayer for the appeal and the
order allowing it constituted a valid appeal. The bond was not
essential to it. It could have been given here, and cases have been
brought here where no bond was approved by the court below, and the
court has permitted the appellant to give bond in this Court.
[
Footnote 5] In the case of
Seymour v. Freer, [
Footnote 6] the Chief Justice says that if, through
mistake or accident, no bond or a defective bond had been filed,
this Court would not dismiss the appeal, but would permit a bond to
be given here. And in all cases where the government is appellant,
no bond is required. It is not, therefore, an indispensable part of
an appeal that a bond should be filed, and the appeal in this case
must be held as taken on the 26th day of May, 1860.
It is insisted that this view is in conflict with the case of
The Dos Hermanos. [
Footnote 7] We do not think so. While the argument of
counsel on the merits in that case is fully reported,
Page 74 U. S. 312
we have nothing from them on the motion to dismiss. The opinion
of the Court states that the question made was whether the appeal
was in due time, and this is answered by saying it was prayed and
allowed within five years from the date of the decree. The appeal
was therefore taken in due time. It is further said that the fact
that the bond was given after the expiration of the five years did
not vitiate the appeal. This is in full accord with what we have
just stated. The bond may be given with effect at any time while
the appeal is alive. There is no question made in the present case
about the appeal's being taken within time. It was taken in time.
But the record was not filed in the Court in time to save the
appeal, and that question was not made or thought of in the
Dos
Hermanos case. It is perfectly consistent with all that we
know of that case, and indeed probable, that though the taking of
the appeal was delayed until near the expiration of the five years
and filing the bond until after that period, the transcript was
filed at the next term after the appeal was taken.
2. It is next insisted that a new appeal was taken by the
proceedings of the 14th November, 1865.
This, however, is in direct contradiction of the record. The
petition of appellants, after reciting the former decree and the
order allowing the appeal of May 26, 1860, and the death of some of
the plaintiffs in the suit, and that no appeal bond had been given,
concludes as follows:
"Your petitioners now appear, and pray your honors to allow them
to become parties to said appeal and to perfect the same by now
entering into a bond for the appeal."
And the order made is, "that said petitioners have leave to
perfect said appeal, so allowed at the June Term 1859, of this
Court, by giving bond &c." The only appeal referred to in the
petition or the order of the court is the appeal allowed May, 1860,
and no language is used in either which refers to a new appeal, or
which is consistent with such an idea.
It is true that the citation speaks of the allowance of the
appeal as obtained at the October Term 1865, but this recital does
not prove that an appeal was then allowed, when it
Page 74 U. S. 313
stands unsupported by the record. Still less can it be permitted
to contradict what the record states to have been done on that
subject at that time.
In the case of
United States v. Curry, the same facts
almost precisely were relied on as constituting a second appeal
that exist in this case, including the misrecital in the citation.
But the Court said
"That after very carefully considering the order, no just
construction of its language will authorize us to regard it as a
second appeal. The citation, which afterwards issued in August,
1847, calls this order an appeal, and speaks of it as an appeal
granted on the day it bears date. But this description in the
citation cannot change the meaning of the language used in the
order."
That is precisely the case before us, and we think the ruling a
sound one.
The appeal must, for these reasons, be dismissed. But we may add
that for anything we have been able to discover in this record, the
appellants have the same right now, whatever that may be, to take a
new appeal that they had in November, 1865, when the unsuccessful
effort was made to revive the first one.
[
Footnote 1]
60 U. S. 19 How.
182.
[
Footnote 2]
67 U. S. 2 Black
721.
[
Footnote 3]
68 U. S. 1 Wall.
690.
[
Footnote 4]
70 U. S. 3 Wall.
46.
[
Footnote 5]
Ex Parte Milwaukee Railroad
Company, 5 Wall. 188.
[
Footnote 6]
72 U. S. 5 Wall.
822.
[
Footnote 7]
23 U. S. 10 Wheat.
306.
