On a bill filed in the Circuit Court for Virginia against A. and
B., the administrators of both were substituted on the record as
defendants, A. and B. themselves having died after the bill was
filed, and suggestion of their deaths being made. In this state,
the cause was heard and judgment given for the defendants. The
complainant appealed to this Court, the appeal bond and the
citation referring, however, throughout, to A. and B. as defendants
in the case, and not referring in any way to their suggested deaths
and the substitution of their administrators. J. A. I., signing
himself "counsel
for the defendants in this cause in the
Circuit Court of the United States for Virginia," acknowledged
service of the citation.
On motion in this Court to dismiss, the court acknowledging the
obvious irregularity of both bond and citation, yet
held
1. That the acceptance by the counsel, J. A. I., in the
circumstantial language above quoted was a waiver of the
irregularity in the citation.
2. That the irregularity as respected the bond did not
necessarily exact a dismissal, which was accordingly ordered, only
unless the appellant filed a sufficient appeal bond, in the usual
form, within ten days, in the same sum as that required on the
allowance of the appeal.
James Bigler filed a bill in the court below against William
Waller and Robert Saunders. Pending the suit, Saunders died, and
his death being suggested, a
scire facias to revive the
cause was issued and returned executed on one Harrell,
Page 79 U. S. 143
his administrator. The death of the defendant, Waller, was also
afterwards suggested, and one W. G. Waller, administrator on his
estate, moved for leave to appear and defend the suit. The court,
accordingly, on the 3d of June, 1870, ordered that the suit should
proceed against the said Harrell, and the said W. G. Waller,
administrators, as already mentioned. In this state of the cause,
it was heard and a decree given that Bigler, the complainant, pay
to the said W. G. Waller, administrator of William Waller, a sum of
money specified, and to the several defendants their costs. From
that decree Bigler took an appeal to this Court, the appeal being
taken in assumed conformity to the second section of the Judiciary
Act, which gives an appeal from the circuit court to this Court,
"the citation being signed by a judge, &c., and the
adverse
party having at least thirty days' notice." And which further
says:
"And every justice or judge signing a citation, &c., shall
take
good and sufficient security that the plaintiff in
error shall prosecute his writ."
By the already mentioned Judiciary or other acts of Congress,
the appeal, if taken within a time limited (security being given in
like manner), operates as a supersedeas. Prefixed to the appeal
bond which Bigler, the appellant, gave in this case were these
words
"
SUPREME COURT OF THE UNITED STATES"
"James Bigler"
"v."
"William Waller and Robert Saunders"
"Bond on appeal"
The bond itself purported to be "given to the above-named
William Waller and Robert Saunders in the sum of $20,000,"
and was with a condition, reciting that
"the above-named James Bigler had prosecuted an appeal to the
Supreme Court of the United States to reverse
the decree
rendered in the above entitled suit by the Supreme Court of the
United States."
The
Page 79 U. S. 144
condition of the bond was, that "the above-named James Bigler
shall prosecute his said appeal to effect, and answer
all
damages and costs if he shall fail to make good his plea."
The citation was directed
"to William Waller and Robert
Saunders," and imported that they were to appear pursuant to
an appeal "wherein
James Bigler is plaintiff and you are
defendants." On the citation was this endorsement:
"I hereby acknowledge service of the within citation."
"JAMES ALFRED JONES"
"Counsel for the defendants in this cause in the"
"circuit court of the United States for the"
"District of Virginia"
In this Court, the appearance had been special.
Page 79 U. S. 145
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
The record shows that the appellant, on the fourteenth of June,
1866, instituted a suit in equity in the circuit court against
William Waller and Robert Saunders for the cause of action set
forth in the bill of complaint. Among other things, he alleged that
he entered into an agreement in writing with William Waller for the
purchase of certain real estate lying in the County of York and
State of Virginia; that the said respondent, on the 10th of May,
1853, executed to the complainant a deed of the said real estate,
and that the complainant, on the same day, made the cash payment as
stipulated in the agreement and gave to the respondent at the same
time his obligation to pay the balance of the purchase money at the
times therein specified; that on the twenty-second of June in the
same year, the complainant
Page 79 U. S. 146
executed to the other respondent a trust deed of the premises to
secure the balance of the consideration which he agreed to pay for
the real estate, as stipulated in that obligation; that he went
into possession, made valuable improvements, and continued to make
the stipulated payments until April, 1861, when the war broke out
and he was compelled to leave the state; that after he left the
state, Waller authorized the other respondent, as such trustee, to
make sale of the real estate, and the complainant alleges that the
trustee effected the sale without publishing the notice required by
the terms of the deed of trust, and that he satisfied the said
obligation out of the proceeds of the sale, and has failed to
account to the complainant for the balance of the proceeds; that
Waller became the purchaser of the real estate at that sale; that
he immediately took possession of the same, together with certain
personal property of great value belonging to the complainant; that
he sold the same and converted the proceeds to his own use and
applied the same to the payment of the balance due on the said
obligation; that he also rented the real estate and received large
sums of money as rents; that he, the complainant, subsequently
succeeded, through the aid of our military authorities, in
recovering possession of the real estate, but that he found it in a
ruinous condition; that since that time, to-wit, on the eleventh of
November, 1865, Waller instituted a suit against him on the said
obligation in the Supreme Court of the City and County of New York,
to recover what he claims to be due thereon; that subsequently the
other respondent posted up, in the county where the real estate is
situated, a notice "that he would, at the request of said Waller,
in a few weeks sell said real estate."
Based on these and other similar allegations, the charge is made
that Waller may induce the trustee so to act in regard to the sale
of the premises as to cheat and defraud the complainant; therefore
he prays that the trustee may be enjoined from selling the said
real estate and that the said Waller may be enjoined from assigning
his interest in the said obligation until the suit in the Supreme
Court of the City and
Page 79 U. S. 147
County of New York is determined, and for an account, and that
the respondents may be required to deliver up all deeds and papers
in their possession concerning said sale.
Suffice it to say, without entering into details, that such
proceedings were had that a decree was entered that the appellant
should pay to William G. Waller, administrator of William Waller,
deceased, the sum of seventeen thousand three hundred and
seventy-seven dollars in coin, and costs, to the defendants.
Dissatisfied with that decree, the complainant appealed to this
Court, which is the case involved in the motion. Pending the suit
here, the appellees have appeared specially and filed a motion to
dismiss the appeal upon two grounds:
(1) Because the citation is addressed to the original parties,
one or both of whom deceased before the final decree.
(2) Because the bond given to prosecute the appeal is executed
to a deceased respondent, and not to the administrator in whose
favor the decree was entered.
Undoubtedly the citation is irregular, as it should be addressed
to the actual parties to the suit at the time the appeal was
allowed and prosecuted. Where a party dies before the appeal is
allowed and prosecuted, the suit should be revived in the
subordinate court and the citation, as matter of course, should be
addressed to the proper party in the record at that time.
Notice is required by law, and where none is given and the
failure to comply with the requirement is not waived, the appeal or
writ of error must be dismissed, but the defect may be waived in
various ways, as by consent or appearance or the fraud of the other
party. Service of the citation may be made upon the attorney of
record of the proper party. [
Footnote 1]
Unquestionably the attorney of record may also waive service,
and acknowledge notice on the citation, as in that behalf he
represents the party. [
Footnote
2]
On the citation in this case is the following endorsement:
Page 79 U. S. 148
"I hereby acknowledge service of the within citation. James
Alfred Jones, counsel for the defendants in this cause in the
circuit court of the United States for the District of
Virginia."
Viewed in any reasonable light, it seems to the Court that the
attorney knew that the appeal was allowed by the court and was
prosecuted by the appellant, which is the only purpose intended to
be effected by the citation. Having been counsel in the cause, the
party signing that certificate must have known that the suit had
been revived, as that proceeding took place before the final decree
was entered. Such a service would be sufficient beyond all doubt if
there had been no error in the form of the citation, and as that
objection is merely a formal one, we are all of the opinion that it
must be considered as waived by the circumstantial language of the
certificate signed without objection by the attorney of record in
the circuit court.
2. Appeals from decrees of the circuit court to this Court are
allowed where the matter in dispute, exclusive of costs, exceeds
the sum or value of two thousand dollars, and the provision is that
such appeals shall be subject to the same rules, regulations, and
restrictions as are prescribed in law in case of writs of error.
[
Footnote 3]
Good and sufficient security must be taken by every justice or
judge who signs the citation that the plaintiff in error shall
prosecute his writ to effect and answer all damages and costs if he
fail to make his plea good, and in order that the writ of error may
operate as a supersedeas and stay execution, the writ must be
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 the judgment was rendered or the decree was
passed. [
Footnote 4] Such a
service is not required in an appeal, but the requirement is that
the appeal must be taken and allowed, in cases where it is required
to be allowed, within the same period of time, and
Page 79 U. S. 149
in both cases, that is whether the cause is removed by writ of
error or by appeal, the plaintiff in error or the appellant must
give the required security within the ten days, Sundays exclusive,
in order that the writ of error or appeal may operate as a
supersedeas.
"What is necessary is that the security be sufficient, and when
it is desired to make the appeal a supersedeas, the security must
be given within ten days from the rendering of the decree.
[
Footnote 5]"
Unless taken within the ten days, an appeal cannot be made to
operate as a supersedeas, but a party appealing within that time
may not desire that the appeal shall have that effect, and in that
event all that can be required of him is that he shall give good
and sufficient security for costs, including "just damages for
delay." [
Footnote 6]
Argument to show that the bond in this case is irregular and
defective is unnecessary, as it is clear that it should be given to
the opposite party or parties in the suit, but it does not follow
by any means that the appeal must be dismissed. On the contrary, it
is the constant practice of the Court to allow such defects to be
obviated by granting leave to the appellant or plaintiff in error
to file a new bond within a reasonable time, to be fixed by the
Court, in view of all the circumstances when the application is
made. [
Footnote 7]
Even if the appeal is not dismissed, it is suggested by the
appellees that it should not be allowed to continue to operate as a
supersedeas, because the appeal bond or the required "good and
sufficient security" was not given within the ten days from the
date of the decree, but it is a sufficient answer to that
suggestion at this time to say that no such question is before the
Court. Such a question may arise hereafter, but the decision of the
Court at present is that the motion to dismiss must be granted
unless the appellant file a sufficient appeal bond in the usual
form within ten days in the same sum as that required by the Chief
Justice who allowed the appeal.
Page 79 U. S. 150
Leave is granted to the appellees to file such a bond, but
the Court does not decide what the effect will be nor that it is or
is not competent for this Court in such a case to grant a
supersedeas, as no such application is before the Court.
[
Footnote 1]
<|1 Black 38|>Bacon v. Hart, 1 Black 38.
[
Footnote 2]
Grosvenor v. Danforth, 16 Mass. 74;
Adams v.
Robinson, 1 Pickering 461.
[
Footnote 3]
2 Stat. at Large 244.
[
Footnote 4]
1 Stat. at Large 85.
[
Footnote 5]
<|6 Wall. 156|>Rubber Company v. Goodyear, 6
Wall. 156;
<|9 Wheat. 553|>Catlett v. Brodie, 9
Wheat. 553.
[
Footnote 6]
Rule 32; 1 Stat. at Large 404.
[
Footnote 7]
<|10 Wheat. 306|>The Dos Hermanos, 10 Wheat. 306;
<|2 Wall. 96|>Brobst v. Brobst, 2 Wall. 96.
