OpenJurist

79 US 700 The Protector

79 U.S. 700

20 L.Ed. 463

12 Wall. 700

THE PROTECTOR.

December Term, 1871

APPEAL from the Circuit Court of the United States for the District of Louisiana.

This was a motion by Mr. P. Phillips to dismiss an appeal from a decree of the Circuit Court of the United States in the Southern District of Alabama. A motion to dismiss an appeal from the same decree, for the reason that it was not brought within one year from the passage of the act of March 2d, 1867,1 had been made and denied at the December Term, 1869.2 The appeal was subsequently dismissed on another ground.3 The ground of this present motion was that more than five years, excluding the time of the rebellion, elapsed after the rendering of the decree, before the appeal was brought.

By the act of 1789, it is provided that writs of error shall not be brought but within five years from the rendering or passing the judgment or decree complained of. By the act of 1803, appeals from decrees were allowed, subject to the same reles, regulations, and restrictions as writs of error.4 As a writ of error is not brought5 until it is filed in the court where the judgment was rendered, so an appeal, as this court considers, is not brought until it is rendered or filed in the same way.

The decree in this case was rendered on the 5th of April, 1861, and the present appeal was allowed on the 6th of May, 1871, and filed in the clerk's office of the proper court, or brought, on the 17th of May, 1871.

In Hanger v. Abbott6 it was held that the statute of limitations did not run, during the rebellion, against citizens of States adhering to the national government having demands against citizens of the insurgent States. And the question of course was whether, making allowance for the suspension of time produced by the rebellion, the appeal was or was not in season.

Mr. Phillips contended that it was not; Mr. F. S. Blount, contra, urging that it was.

The CHIEF JUSTICE delivered the opinion of the court.

1

The question, in the present case is, when did the rebellion begin and end? In other words, what space of time must be considered as excepted from the operation of the statute of limitations by the war of the rebellion?

2

Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.

3

The proclamation of intend d blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade: the first of the 19th of April, 1861,7 embracing the States of South Corolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; the second, of the 27th of April, 1861,8 embracing the States of Virginia and North Carolina; and there were two proclamations declaring that the war had closed; one issued on the 2d of April, 1866,9 embracing the States of Virginia, North Corolina, South Corolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20th of August, 1866,10 embracing the State of Texas.

4

In the absence of more certain criteria, of equally general application, we must take the dates of these proclamations as ascertaining the commencement and the close of the war in the States mentioned in them. Applying this rule to the case before us, we find that the war began in Alabama on the 19th of April, 1861, and ended on the 2d April, 1866. More than five years, therefore, had elapsed from the close of the war till the 17th of May, 1871, when this appeal was brought. The motion to dismiss, therefore, must be

5

GRANTED.

1

14 Stat. at Large, 545.

2

9 Wallace, 689.

3

11 Id. 82.

4

2 Stat. at Large, 244.

5

Brooks v. Norris, 11 Howard, 204.

6

6 Wallace, 532; The Protector, 9 Id. 659.

7

12 Stat. at Large, 1258.

8

Ib. 1259.

9

14 Stat. at Large, 811.

10

Ib. 814.