FREEMAN V. CLAY.
(O£rcuu Court oj .dvpeals, Fifth Circuit. November 27, 1891.)
The' citation on appeal must be signed by the jUdge or justice, and, under rule 14. p/Ior.,lS, must be made returnable not exceeding 30 days from the day of signing, the return-day fall in vacation or in term.time; but a defect in Buch par· ticulahlis cured by the filing of the transcript and an entry of a regular appear. ance by appellees' counsel. . The app,eal-bond must be approved by the Judge or Justice. An approval by the , clerk alone is not'sufficient, and is ground of dismissal.
ro CmOUIT COURT Oll' ApPEALS-CITATION-DEll'EOT CURE» BY ApPEARANOB.
Appeal from' the United States Circuit Court for the Northern Districtofldlsi3issippi. Motion,to dismiss the appeal. Granted condition;' ally. ,:' , ' Edward Mayes and Frank Johnston, for. appellant. W.' L. Nugent; for appellees. ",. Before: PARDEE, Oircuit Judge, and LoCKE and BRUCE, District Judges; '. .
. PARDEE, J. In this case the appellees have moved to dismiss the ap;' peal 'in' this court for the following reasons: "(1) *h.ebond'is notappfoved by the trial jUdge. nor are the names of the sureties inserted in it. (2) The citation is not signed by the t11al judge. but by the Clerk.. lihd was signed September 12th. executed September 14th, and madeteturnaible on the thiJ:dMonday in November. contrary to paragraph 5. rule 14." An inspection of the record shows that on the 30th day of June, 1891, the court below, on motion of complainants, granted an appeal to the next term of the United States circuit court of appeals for the fifth opera:te as a .s;u,peraedeas upon t!leb: illto :boIld in the penalty of $5,334.50, with two or more good and sufficient securities, conditioned according to law. 'That thereafter, on the 8th of September, 1891,: an.appeal.bond was filed, in which the names of the sureties are not inserted, and. upon which was the following indorsement: "I above bond. September 8th, 1891. G. R. HILL, Clerk," -but no approval by any judge. That upon the 12th day of September, 1891, G. R. Hill, clerk, issued a citation, directing the appellees to be and appear before the United States circuit court of appeals for the fifth· circuit at the next term thereof, to be held in the court-room of said court' at New Orleans, in said fifth circuit, on the third Monday of November, 1891. From this showing it appears that the motion to dismiss the appeal in this cause is well founded as far as the facts are .concerlled; for, in taking and perfecting the said appeal, neither the law (Rev. St. § 1000) nor the rUles of this court have been complied with. The citation should have been issued and signed by the judge of the court below, directing the appellees to appear within 30 days; and the judge signing the citation should have required and accepted a sufficient bond to perfect the appeal, instead of which it appears that the judge v.48F.no.1l-54.
l!'EDEaAL REPORTER, vol. 48.
granting the appeal did not sign the citation, accept the bond, nor make the return-day within'the rules. ,Tne records of'this court, however, show the transcript has been filed; and that the appellees, by counsel, have entered a regular appearance; 'so that, s() far as defective citation are concerned, no injury to appellees has resulted. It with regard to, the bond. In this respcct,'th,ecase seems to be' very similar, ifnot identical, with that ofOIRei1J,y v. Edrington, 96 u. S. 724, wherein Mr. Chief speaking for the court, says:
. :';N0n6of the?bjectious to this appeillare, In. ouropinion, well taken,. cept the one winch rf'lates to the approval of the bond,. That, wethlOk, must be sustained. The security required upnn writs of error and appeals JUu,tpe,taken by thejudge or. justice.:, St. Hecannot delegate thisp0Y'er to the clerk.)Iere the approval of the by the clerk alone;dthe jUdge has never acted; brit, liS the omission w.,as undoubtedly clmsed by the order of the court permitting the clerk to take the bond" the case is a proper one of the rule by wMch this court sometimes refuses to dismiss appeals or writs of error, failure to,comply witb such t,erma imposed for, the supplying in the proceedings. Martin v. Hunter'. Lessee, 1 Wheat. 8ta; Dayton v. Lash, __: -' . S. 112." _ _ ,.' ' U. : :. i.' .: . . t .,'
on or»eforethe in January llpless.;the appellant nexhfile,with the clerk of this court a bond, with good arid suffi.cient eecupity, conditioned according to law:. for the purposes, of tbe appeal; and it is so ordered·
p'Re:illy,y. Edringtort, 8Upra, to-wit:. ',I'bisca\lsew,ill, stand dismisiled
. And we think that the like order may go in ,this, case as was given in
MARIETTA .··.li: N. G. Ry.. eo. t
' r '
'. (Circuit Court of
:Appeals, F1J'I;'N ,Circuit. Debembl!'r 7, 1891.)
ON CLAm ?J' : .. '
, . The.decisionof 8 Circuit court, on a petition of interventio1l'fn's foreclosure mit, 8ustB.tnillg'the clail:D, is "final decision," Cong, March a, 517, § 6,. giving the appeals jurilldi9tlOJ1. to review filial decisions of,the Circuit coutts. ,I , ,,', .""..,.
FORBCIlOlIt1RII' Oll' RAILROAD .", ",. , OJ' INTBBv1IHBR++iCONDITIONALSALB , ",;,. '. ,
, All improvement, company, interested, in the constrtJctloll· of a railroad,and " Wb08e:president was a stockholder in the railroad ,oomparly'81ld largely interested all aOQntractor in the constfuctipn of therailroad, equippedtt\le ,railroad with rolling'stock, and caused tile same to be marltii'dwith the nalpl>'llf 'the 'railroad company:; the intent,of the imprtl'Vementcompany being to (llnable, the uailroaO., com'pll,ny toJsElue certain bOl1dll"Be,c,:ured ,by lI10rtgage on rau,r!>ad as an equipped railroad, ahd slloh bondg issued ,and plaoed through'th1lIDstrumentality o'fthe ' preslilell,t of the improvementcompany'.' 10 a suit by a holder lof the bonds to foreol(jse lIuchmortgage, an 88signee Qf the JII1PrOvement olaiming the rolling stock. Held, that the imprbvemEmt oompan:l"a:rHlits as!llgnee were 'estopped to alleg( tbatth.e't,rans!Wtion in questro,n oonstitute.d,"a. grat,uitoUB loan of , e, the rolling stock, pr to dellY the title of · way company ,thereto as plaintiff. ' . ''','''' ' ,' ." " ' ' '. , , ,68 Fed. Rilp. 82; ,raversed. '