123 US 725 Radford v. Folsom

8 S.Ct. 334

123 U.S. 725

31 L.Ed. 292

RADFORD et al.
FOLSOM et al.1

December 19, 1887.

Jos G. Anderson and Frank Hagerman, for defendants.

W. F. Sapp and Walter H. Smith, for complainants.


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This suit was brought to foreclose a mortgage given to secure several alleged debts. On the second of April, 1884, the bill wad dismissed on its merits as to the principal one of the debts and some others, but as to the rest, and as to matters contained in a cross-bill of the defendants, the cause was referred to a master to find certain facts and state certain accounts. The complaint on the same day prayed an appeal to this court, which was allowed, but never docketed here. On the tenth of October, 1885, the court, after overruling certain exceptions to the master's report, entered a second and last decree, which was against the complainant, for $14,084.77. At the end of that decree was the following: 'And the complainant prays an appeal from the foregoing decree, which appeal is by the court hereby allowed, and the penalty of the appeal-bond, if the same is to operate as a supersedeas, is fixed at _____ dollars, but if the same is not to operate as a supersedeas, then the penalty of the appeal-bond is fixed at _____ dollars.' The next term of this court thereafter began October 12, 1885, and the appeal was not docketed here during that term.


On the eighth of February, 1886, there was filed in the office of the clerk of the circuit court an order made by the district judge at his chambers, and after the term at which the decree was rendered, fixing the amount of the appeal-bond at $20,000, if for supersedeas, and at $2,000, if for costs only. On the eighth of March the complainant filed a motion to modify the amount of the appeal-bond. On the eighth of June, while this motion was pending, the complainant filed with the clerk of the circuit court an appeal-bond, dated March 1, 1886, in the penal sum of $25,000, which had been approved by the district judge as a supersedeas bond. On the second of October the motion to modify the amount of the appeal-bond was overruled by the court, 'on the ground that the case was then in the supreme court of the United States.' The case was docketed in this court October 15, 1886. It does not appear that any citation has ever been signed or served. This motion was made on the eighth of December, 1887, during the present term, to dismiss the case, 'because each of said appeals became null and void when the return-term of this court passed without a transcript of the record being filed in this court and being docketed herein.'


The first appeal taken in open court on the second of April, 1884, became inoperative by reason of the failure to docket the same in this court before the and of October term, 1884. Whether the decree from which that appeal was taken was a final decree, or interlocutory only, it is unnecessary now to consider. The appeal allowed in open court, October 10, 1885, also became inoperative, as it was not docketed here before the end of October term, 1885; and this, too, whether the bond approved by the district judge after the term was accepted to perfect that appeal or not. If an appeal at all, it was of the date of its allowance in open court, and to be kept in force it should have reached here before the end of the term to which it was made returnable. Grigsby v. Purcell, 99 U. S. 505, and cases there cited. cited.


The acceptance of the bond by the district judge cannot be considered as the allowance of a new appeal at that date, because that was after the term at which the decree was rendered, and no citation was ever issued or served. Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. Rep. 319. The appearance of counsel for appellee at the present term on the making of this motion is not a waiver of the citation. It would have been different if there had been a general appearance at the last term, that being the term to which the appeal, if it had been properly taken, would have been returnable. U. S. v. Armejo, decided April 3, 1866, and reported in book 18 L. C. O. P. Co. Ed. U. S. Sup. Ct. Rep. 247. The motion to dismiss is granted.


See 14 Fed. Rep. 97.