Sage v. R.R. Co., 96 U.S. 712
Case details
Bluebook Citation
Sage v. R.R. Co., 96 U.S. 712
Full caption
Sage v. Railroad Company.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Waite (Chief Justice)
Sage v. Railroad Company.
1. An appeal lies here from the final decree of the Circuit Court confirming a sale made under its order.
2. After the term at which such final decree was rendered, any justice of this court may, within the time prescribed by law, allow an appeal, and approve the bond which is to operate as a supersedeas. 3. A general appearance waives all defects in a citation.
4. The refusal of the Circuit Court to accept a supersedeas bond, when offere during the term at which the decree was rendered, does not take from a judge of that court, or a justice of this court, the power to approve one thereafter.
Motion. 1. To dismiss the appeal. 2. To vacate the supersedeas.
Mr. H. B. Turner and Mr. J. C. Bullitt in support of the motions.
Mfr. N. A. Cowdry and Mr. B. T. Merrick, contra.
Mr. Chief Justice Waite delivered the opinion of the court.
This case was before us at the last term, upon a motion o dismiss an appeal from a decree entered Oct. 22, 1875, an vacate a supersedeas upon that appeal. We denied the mo ion to dismiss, but vacated the supersedeas. The case is repo in 93 U. S. 412. 92
After the vacation of the supersedeas, the decree of c • ’ 1875, was executed, July 18, 1877, by a sale of the mortgag p. 713property. The master having reported the sale to the court, Sage, Cowdrey, & Buell, who had been admitted as defendants in the suit, for the purpose of an appeal from the former decree, filed exceptions; which were overruled, Aug. 31, 1877; and an order was entered confirming the sale, and directing the master to convey the property sold to the Farmers’ Loan and Trust Company, — the purchaser, in trust for the parties interested in the purchase under the provisions of the trust-deed, as defined in the original decree. At the same time, a deed of conveyance executed by the master was presented; and the court ordered that it be delivered to the Farmers’ Loan and Trust Company, and recorded. Afterwards, during the same day, Sage, Buell, & Cowdrey, in open court, prayed an appeal to this court, from certain orders entered in the cause, Oct. 21, 1875, and from the decree of confirmation, and “each and every other order made in the cause, Aug. 31, 1877.” They also asked that security for a supersedeas might be accepted and approved. The court entered an order allowing the appeal; hut refused to accept a supersedeas bond, or, as it is expressed in the order, refused the supersedeas. The bond for the appeal was fixed at SI,000, to be made to the clerk of the court, in trust for whom it might concern, approved by one of the judges of the court, and filed within thirty days. No bond of any kind was executed at that time.
On or about the 15th of September, 1877, Sage, Buell, & owdrey presented to Mr. Justice Hunt, of this court (and a
justice assigned to a different circuit from that in which the istrict of Iowa is situated), a petition setting forth the taking o an appeal by them, in open court, from the order of Aug. 1, and its allowance; and stating, further, that “no supersedeas
on was given or approved.” They thereupon tendered a on, payable to the clerk of the court, in the sum of $20,000, 1C t ey asked that justice to approve and allow “ to operate
bond in the . . . cause.” The security being who b°nd was “ approved to operate as a supersedeas Cm <- t ®ame was filed in the office of the clerk of the Circuit so fil q 6 “ ^tates at Dos Moines, Iowa; ” and it was so tiled Sept. 22, 1877.
e 24th of September, 1877, Sage and Cowdrey executed p. 714another bond, payable to the clerk, in the sum of $1,000, conditioned according to law, for a supersedeas; which was approved by the district judge for the district of Iowa, and filed in the clerk’s office, Oct. 11, 1877.
The appellees now move to dismiss the appeal; or, in case that motion shall not be granted, for a vacation of the supersedeas.
1. As to the appeal.
It is clear that this appeal does not bring up for examination the orders of Oct. 21, 1875. Every proceeding in the cause which was prior to Oct. 22, 1875, must be examined, if at all, under the appeal from the decree of that date still pending here.
The only order made Aug. 31, 1877, which is in the nature of a final decree, is that confirming the sale, and directing the conveyance to the purchaser by the delivery of the deed presented and approved.
We have often decided that a decree confirming a sale, if it is final, may be appealed from. Blossom n. Railroad Company, 1 Wall. 655; Butterfield v. Usher, 91 U. S. 246. In this case it is final, so far as title under the sale is concerned. It cuts o the equity of redemption by the railroad company and the junior mortgagees and general creditors, except as provided in the decree of Oct. 22; and passes the title to the purchaser, su ject to certain trusts already fixed by the court, over which t ie present appellants have control only through their appeal from the former decree. No reversal of any order hereafter ma will necessarily divest this title. The proceedings herea te will relate only to the disposition of the property acquire. y the purchase and the proceeds of the sale. For relief again the sale, resort can alone be had to an appeal from the ec of confirmation.
2. As to the supersedeas. , The statute makes no provision in terms for the form o allowance of an appeal (Rev. Stat., sect. 692) ; but as t ere be no appeal without the taking of security, either for c0^ costs and damages, and this is to be done by the court, or a J or justice, the acceptance of the security, if followed w en sary by the signing of a citation, is, in legal effect, t e a
of an appeal. If the security is given and accepted in open court during the term at which the decree appealed from is rendered, no citation is necessary; because the parties, being presumptively present during the whole term, are charged with notice of all that is done affecting their interests. Whenever, therefore, security for an appeal is accepted during the term, an appeal is allowed. If the security is taken out of court, and after the term, a citation should be issued to bring in the parties, unless they voluntarily appear; for, until the security has been accepted, the allowance of the appeal cannot be said to have been perfected.
Whoever can sign a citation may allow an appeal; and by sect. 999, Rev. Stat., it is provided that this may be done by a judge of the Circuit Court or a justice of this court. The power is not confined to the justice assigned to the particular circuit in which the court that rendered the decree is held. When, therefore, Mr. Justice Hunt accepted the security in this case, he allowed an appeal, which, by reason of the form of the security, was to operate as a supersedeas. No question in respect to a citation arises, because the appellees have appeared.
The refusal of the Circuit Court to accept a supersedeas bond when offered during the term, did not necessarily take from a judge of that court, or a justice of this court, the power to approve one thereafter. It is true that the bond accepted in this case recites an allowance of an appeal in open court; but t iis is mere surplusage, and does not affect either the appeal or t e validity of the bond. It may be that the form of the apP ication was one calculated to mislead the judge, and that it 1 do so; but the fraud, if any, was not such as, in our opinion, w°u d justify us in setting aside what has been done. We are satisfied that the appellants were entitled to their appeal;
taken in time, the supersedeas followed as a matter aw upon the giving of the necessary security. We ought t to set aside a supersedeas, in a case like this, simply because e justice who approved the bond, and thus allowed the apP a which operated as a supersedeas, might have sent the Ppe ants to another judge with their application, if he had k«own all the facts.
w
e are not now called upon to determine the effect of the
supersedeas which has been obtained; but we are of the opinion that, to the extent it may properly operate as a stay of proceedings, it must be sustained.
The motions to dismiss the appeal and vacate the supersedeas are consequently
Denied.