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5 U.S. 822

Seymour v. Freer

Supreme Court of the United States

Decided December 15, 1866

Supreme Court of the United States · decided 1866-12-15

This was a.motion to dismiss an apppal because the bond for the prosecution of the appeal was not filed within ten days after the decree.' It Rppeared that the decree in the Circuit Court was drawn and placed in the hands of the clerk on the 15th of November, 1866, upon an understanding by.the counsel, sanctioned by the court, that it was to be entered, wheh approved by the court, as of that day.

Decided 1866-12-15

The CHIEF JUSTICE

¶1delivered the opinion of the court.

¶2We think that for the purposes of appeal this decree must be regarded as having been passed on the 20th, and that the bond was filed in time.

¶3Hut if this were otherwise, and through' mistake or accident no bond, or a defective bond, had been filed, this eourtwould not .dismiss the ap.pea.1, except on failure to comply with an order to give the proper security within such reasonable time as it might prescribe.* What is essential to an *823appeal is allowance, citation to the appellees, or equivalent notice or- waiver, and the bringing up of the record at the next term of this court. Security for prosecution should be taken by the judge on signing the. citation; but if this duty be omitted or defectively performed, a remedy can be applied here on motion.

¶4In the present case a bond, admitted, to be sufficient for costs of prosecution, whether given in time'to'make appeal operate as a supersedeas or not, -was filed in the court below before removal to this court.

¶5The motion to dismiss the appeal must therefore be

¶6Denied.

¶7 Brobst v. Brobst, 2 Wallace, 96.

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