1. An appeal lies here from the final decree of the circuit
court confirming a sale made under its order.
2. After the term at which such final decree was rendered, any
Justice of this Court may, within the time prescribed by law, allow
an appeal, and approve the bond which is to operate as a
supersedeas.
3. A general appearance waives all defects in a citation.
4. The refusal of the circuit court to accept a supersedeas
bond, when offered during the term at which the decree was
rendered, does not take from a judge of that court, or a Justice of
this Court, the power to approve one thereafter.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This case was before us at the last term, upon a motion to
dismiss an appeal from a decree entered Oct. 22, 1875, and to
vacate a supersedeas upon that appeal. We denied the motion to
dismiss, but vacated the supersedeas. The case is reported in
93 U. S. 93 U.S.
412.
After the vacation of the supersedeas, the decree of Oct. 22,
1875, was executed, July 18, 1877, by a sale of the mortgaged
Page 96 U. S. 713
property. The master having reported the sale to the court,
Sage, Cowdrey & Buell, who had been admitted as defendants in
the suit, for the purpose of an appeal from the former decree,
filed exceptions, which were overruled, Aug. 31, 1877, and an order
was entered confirming the sale, and directing the master to convey
the property sold to the Farmers' Loan and Trust Company -- the
purchaser, in trust for the parties interested in the purchase
under the provisions of the trust deed, as defined in the original
decree. At the same time, a deed of conveyance executed by the
master was presented, and the court ordered that it be delivered to
the Farmers' Loan and Trust Company and recorded. Afterwards,
during the same day, Sage, Buell & Cowdrey, in open court,
prayed an appeal to this Court, from certain orders entered in the
cause, Oct. 21, 1875, and from the decree of confirmation, and
"each and every other order made in the cause, Aug. 31, 1877." They
also asked that security for a supersedeas might be accepted and
approved. The court entered an order allowing the appeal, but
refused to accept a supersedeas bond, or, as it is expressed in the
order, refused the supersedeas. The bond for the appeal was fixed
at $1,000, to be made to the clerk of the court, in trust for whom
it might concern, approved by one of the judges of the court, and
filed within thirty days. No bond of any kind was executed at that
time.
On or about the 15th of September, 1877, Sage, Buell &
Cowdrey presented to Mr. Justice Hunt, of this Court (and a justice
assigned to a different circuit from that in which the District of
Iowa is situated), a petition setting forth the taking of an appeal
by them, in open court, from the order of Aug. 31, and its
allowance, and stating further that "no supersedeas bond was given
or approved." They thereupon tendered a bond, payable to the clerk
of the court, in the sum of $20,000, which they asked that justice
to approve and allow "to operate as a supersedeas bond in the . . .
cause." The security being satisfactory, the bond was "approved to
operate as a supersedeas when the same was filed in the office of
the clerk of the Circuit Court of the United States at Des Moines,
Iowa," and it was so filed Sept. 22, 1877.
On the 24th of September, 1877, Sage and Cowdrey executed
Page 96 U. S. 714
another bond, payable to the clerk, in the sum of $1,000,
conditioned according to law, for a supersedeas, which was approved
by the district judge for the district of Iowa, and filed in the
clerk's Oct. 11, 1877.
The appellees now move to dismiss the appeal, or, in case that
motion shall not be granted, for a vacation of the supersedeas.
1. As to the appeal.
It is clear that this appeal does not bring up for examination
the orders of Oct. 21, 1875. Every proceeding in the cause which
was prior to Oct. 22, 1875, must be examined, if at all, under the
appeal from the decree of that date still pending here
The only order made Aug. 31, 1877, which is in the nature of a
final decree, is that confirming the sale and directing the
conveyance to the purchaser by the delivery of the deed presented
and approved.
We have often decided that a decree confirming a sale, if it is
final, may be appealed from.
Blossom v. Railroad
Company, 1 Wall. 655;
Butterfield v.
Usher, 91 U. S. 246. In
this case it is final, so far as title under the sale is concerned.
It cuts off the equity of redemption by the railroad company and
the junior mortgagees and general creditors, except as provided in
the decree of Oct. 22, and passes the title to the purchaser,
subject to certain trusts already fixed by the court, over which
the present appellants have control only through their appeal from
the former decree. No reversal of any order hereafter made will
necessarily divest this title. The proceedings hereafter will
relate only to the disposition of the property acquired by the
purchase and the proceeds of the sale. For relief against the sale,
resort can alone be had to an appeal from the decree of
confirmation.
2. As to the supersedeas.
The statute makes no provision in terms for the form of the
allowance of an appeal, Rev.Stat., sec. 692, but as there can be no
appeal without the taking of security, either for costs or costs
and damages, and this is to be done by the court, or a judge or
justice, the acceptance of the security, if followed when necessary
by the signing of a citation, is in legal effect the allowance
Page 96 U. S. 715
of an appeal. If the security is given and accepted in open
court during the term at which the decree appealed from is
rendered, no citation is necessary, because the parties, being
presumptively present during the whole term, are charged with
notice of all that is done affecting their interests. Whenever,
therefore, security for an appeal is accepted during the term, an
appeal is allowed. If the security is taken out of court, and after
the term, a citation should be issued to bring in the parties,
unless they voluntarily appear, for, until the security has been
accepted, the allowance of the appeal cannot be said to have been
perfected.
Whoever can sign a citation may allow an appeal, and by sec.
999, Rev.Stat., it is provided that this may be done by a judge of
the circuit court or a justice of this Court. The power is not
confined to the justice assigned to the particular circuit in which
the court that rendered the decree is held. When, therefore, MR.
JUSTICE HUNT accepted the security in this case, he allowed an
appeal, which, by reason of the form of the security, was to
operate as a supersedeas. No question in respect to a citation
arises, because the appellees have appeared.
The refusal of the circuit court to accept a supersedeas bond
when offered during the term, did not necessarily take from a judge
of that court, or a justice of this Court, the power to approve one
thereafter. It is true that the bond accepted in this case recites
an allowance of an appeal in open court, but this is mere
surplusage, and does not affect either the appeal or the validity
of the bond. It may be that the form of the application was one
calculated to mislead the judge, and that it did do so, but the
fraud, if any, was not such as, in our opinion, would justify us in
setting aside what has been done. We are satisfied that the
appellants were entitled to their appeal, and that, if taken in
time, the supersedeas followed as a matter of law upon the giving
of the necessary security. We ought not to set aside a supersedeas
in a case like this simply because the justice who approved the
bond, and thus allowed the appeal which operated as a supersedeas,
might have sent the appellants to another judge with their
application, if he had known all the facts.
We are not now called upon to determine the effect of the
Page 96 U. S. 716
supersedeas which has been obtained; but we are of the opinion
that, to the extent it may properly operate as a stay of
proceedings, it must be sustained.
The motions to dismiss the appeal and vacate the supersedeas are
consequently
Denied.