Seymour v. Freer, 72 U.S. (5 Wall.) 822

Where, through mistake or accident, no bond, or a defective bond, has been filed, this court will not dismiss the appeal,—if it is in all other respects quite regular,—except on failure to comply with an order to give the proper security within such reasonable time as it may prescribe.

Appeal from the Circuit Court for Northern Illinois.

This was a motion to dismiss an appeal because the bond for the prosecution of the appeal was not filed within ten days after the decree.

It appeared 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, when approved by the court, as of that day. It was retained for several days by the judge, who required a stipulation from counsel in iespect to the receiver appointed by the decree, and was then returned to the clerk, and entered on the 20th as of the 15th. The bond was filed on the 28th.

The CHIEF JUSTICE delivered the opinion of the court.

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

But if this were otherwise, and through mistake or acci dent no bond, or a defective bond, had been filed, this com would not dismiss the appeal, except on failure to comp with an order to give the proper security within sue iea-Bonable time as it might prescribe.* What is essentia to a p. 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.

Brobst v. Brobst, 2 WAllace, 96.

In 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.

The motion to dismiss the appeal must therefore be

Denied.

Garrison v, Cass County.

Appeal dismissed for want of jurisdiction, where the decree was rendered 18th June, 1861, but no appeal was prayed for or allowed until June Term, 1865, when, on motion of the defendants below, an appeal was allowed nunc pro tunc, as of 13th June, 1861, there having been no citation to the appellees, and the record not having been brought up at the next term.

Motion to dismiss an appeal from the Supreme Court of the Territory of Nebraska.

The CHIEF JUSTICE delivered the opinion of the court.

The decree in this case was rendered on the 13th June, 1861. No appeal was prayed or allowed until the June Term, 1865. At that term, on motion of the defendants elow, an appeal was allowed nunc pro tunc, as of 13th June, 1861.

There is nothing in the record which warranted the maklng of this order; nor, if it could have been lawfully made, Would it avail the defendant, for there was no citation to the appellees, and the record was not brought up at the next term of this court.

p. 824

$24 Alviso v. United States. [Sup. Ct.

At most, it can only be regarded as an allowance of an appeal at the June Term, 1865, and no citation appears to have been issued since to the appellees, nor was there any equivalent notice, nor has there been any waiver.

The appeal must therefore be

Dismissed for want of jurisdiction.

Alviso v. United States.

A citation to the adverse party, with due return or waiver by general appearance, or otherwise, is indispensable to jurisdiction on appeal.

On motion to dismiss an appeal from the District Court for Northern California, the CHIEF JUSTICE stated the case and gave the opinion of the court.

The final decree in the District Court was rendered on the 8th September, 1863, and an appeal was allowed, on motion of the claimant, on the 18th November, 1863. Upon this appeal no action was taken by the appellants. On the 23d February, 1864, an appeal was again allowed, and the record was brought to this court and filed November 1, 1864.

This was in time, but no citation was issued to the adverse party, and there is nothing to show any waiver; and a citation, with due return, or waiver by general appearance or otherwise, is indispensable to jurisdiction on appeal.

The writ, therefore, must be

’ ’ Dismissed.

Bacon v. Hart, ’ Black, 38; Castro v. United States, 3 Wallace, 49.

p. 825

German v. United States.

An appeal from California dismissed where the record was not brought and filed within sixty days of the next term of the court; the record, moreover, not having been returned within the term.

On motion to dismiss an appeal from the District Court of the United States for Southern California.

The CHIEF JUSTICE stated the case, and delivered the opinion of the court.

The appeal in this case was allowed on the 26th October, 1864, and the record was filed here on the 21st August, 1865.

This was too late. The record should have been brought and filed within the first sixty days of the next term of this court. This was not done, nor was the record returned within the term. The appeal, therefore, must be

Dismissed.