text:
Ex parte in the Matter of Mussina v. Cavazos/Opinion of the Court

ON motion for a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, to show cause, &c.

Mr. Benjamin, of counsel for the said Jacob Mussina and Angela Garcia Lafon de Tarneva, appellants as aforesaid, and two of the defendants in the above-entitled cause, moved the court for a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, requiring him to show cause, on the first Monday of February next, why a peremptory writ of mandamus should not issue, directing him to allow the appeal of the said defendants from the final decree rendered against them in the above-entitled cause, and to grant all such legal orders as may be necessary to enable said defendants to bring said appeal regularly before this court. On consideration whereof, it is now here ordered by the court that a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, requiring him to show cause, on the first Monday of February next, why a peremptory writ of mandamus should not issue for the purposes above stated, be, and the same is hereby, granted. And it is further ordered, that a copy of this rule be forthwith served on the said district judge.

December 24, 1857.

A copy of this rule was served upon Judge Watrous, when he filed the following answer:

In answer to a rule recently made by this court, requiring me     to show cause why a peremptory writ of mandamus should not be      issued, commanding me to allow the appeal of Jacob Mussina      and Maria Angela Garcia de Tarneva, two of the defendants in      a cause heretofore mentioned, in the District Court of the      United States for the district of Texas, I most respectfully      state that I am now ready to allow said appeal, and always      have been. That I have never been disposed to oppose or     hinder it. My desire has always been that my decision in the     case should be revised by this honorable court, where, if it      was right, it would be affirmed, and where any error into      which I may have fallen will be at once detected and      reformed. Some time before the 15th day of January, 1857, Mr. Daniel D. Atchison, of Galveston, stated to me at chambers     that he wished to take an appeal for Mussina, in the Cavazos      case. I asked him whether the time limited for taking appeals     had expired or not. He said that it had not. I then replied,     'Mr. Mussina has a right to the appeal, and I will give it to      him, as a matter of course. Call it up in the court-house at     any time when the opposing counsel is present, and I will fix      the amount of the bond and perfect the appeal.' It has been      my practice, whenever it is convenient, to hear both sides as      to the amount of the bond. The opposing counsel, Mr. Hale,     resided in Galveston-his office is but a very short distance      from the court-house. The court at the time of the     application was in session, and Mr. Hale was in daily      attendance upon it. Notice might have been served upon him     very easily, at any time. If notice had been served upon him,     I should have proceeded without his presence and perfected the appeal. But I was never informed that Mr. Hale had notice of the     application. No citations were ever presented to me for     signature-no bond for my approval.

I have no recollection that the application was ever renewed to me, either in open court or at chambers. The conversation which occurred at my office, between Mr. Atchison and myself, as above stated, is the only one of which I have any remembrance. I do not say that the appeal was never brought to my notice in open court, but I do say, that if it ever was, I do not remember it.

The session of the court continued for several weeks, and I believe months, after the application of Mr. Atchison was made to me. Mr. Hale was in almost constant attendance upon the court in attention to his business, and it would have been very easy for Mr. Atchison to present the matter to the court when Mr. Hale was present. If he had done so, I should, without the least hesitation, have proceeded to do anything necessary to perfect the appeal. If he had stated that he could not procure the attendance of Mr. Hale, or could not wait further for his attendance without injury to his client, I should have proceeded to act on the application at once. The intervention of this court is entirely unnecessary, as I am ready at any moment, when requested, to proceed to approve a proper and sufficient appeal bond, and to sign a proper citation; and even if I should not be satisfied with the bond which might be presented to me, and should refuse to approve it, the parties affected by such refusal could at once obtain their appeal from any of the judges of this court, either during the term or afterwards. I submit, therefore, that the rule should be discharged.

JOHN C. WATROUS.

Washington, Jan. 23, 1858.

In support of this answer I beg leave to refer to several affidavits received since it was written, and which accompany it.

JOHN C. WATROUS.

February 1, 1858.

District Court of the United States, Eastern District of Texas, at Galveston.

RAFAEL GARCIA CAVAZOS ET AL. v. CHARLES STILLMAN ET AL. In Chancery, No. 41.

I, Joseph E. Love, deputy clerk of the District Court of the United States for the eastern district of Texas, at Galveston, make oath and say: That, on the 13th day of January, A. D. 1857, Daniel D. Atchison, Esq., brought into the clerk's office of said court a paper purporting to be a petition of Jacob Mussina and others, to join in an appeal theretofore taken in the above-entitled cause. Affiant believes that this was in the afternoon of said day, and the endorsement of filing made on that day is in my handwriting. I was present when the petition was presented to Judge Watrous by Mr. Atchison. His honor asked him if the five years allowed by law for taking an appeal had expired? Mr. Atchison replied, 'No.' Judge Watrous then replied, as near as I can remember, in these words: 'Certainly, sir, I will grant your request, and any day you will get the opposing counsel and come to me, I will fix the bond and perfect the appeal.' It was my duty to be in court whilst it was in session, and I was there during the greater part of the time. F. J. Parker officiated in the absence of the clerk and myself. To the best of my remembrance and belief, no application for appeal in said cause was made in open court, front the 13th to the 16th of January, inclusive. I believe I was in court, on those days, all the time it was in session.

J. E. LOVE.

United States District Court for the Eastern District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

I, James Love, clerk of the United States District Court, sitting at Galveston, state, on oath, that it appears from the minutes of the court now before me, entered in my own handwriting, that I was in court from the 13th to the 20th January, 1857, inclusive; that during that time, whilst I was in court, to the best of my recollection and belief, no application was made, in open court, by D. D. Atchison, or any other, for appeal in the above cause, on any of those days. I further state, that I was not in court all the time of its session on the days named, but was never absent without leaving one or both of my deputies, F. J. Parker and Joseph E. Love, with strict injunctions that one of them should always be at the clerk's table. The court opened at 10 A. M., at 2 P. M., with an uniformity I have not seen equalled. I usually left court between 11 and 12 o'clock.

JAMES LOVE.

In the United States District Court for the Eastern District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

I, F. J. Parker, state, on oath, that I was present at the January term of the United States District Court for the eastern district of Texas, sitting at Galveston, on each of the days from the 13th to the 16th of January, 1857, inclusive; that during that time no application was made in open court from any source, for an appeal in said chancery cause, No. 41, or for any other action relating to the same, while I was present in court. I further state that, at the said term of said court, I was acting as deputy clerk of the same for James Love, the clerk of the court, at Galveston, and that it was my custom always to be present during the absence of the said James Love, or J. E. Love, his deputy; and that, to the best of my recollection, I was never absent from court when one or the other of the said gentlemen were not present.

F. J. PARKER.

In the United States District Court, Eastern District of Texas, Galveston.

CAVAZOS ET AL. v. STILLMAN ET AL. Chancery, No.

I, J. A. H. Cleveland, state, on oath, that I am deputy marshal, and have been since the appointment of Ben. McCulloch as marshal of the district of Texas, in 1853; and that, as such deputy marshal, it is my duty and my business to be present each day when the court is in session, and I can safely say that, to the best of my knowledge, I have never been absent a day when it was my duty to be present in court.

I attended regularly the January term, 1857, every day, and I never saw nor heard of any petition for an appeal in the above case until I received, a few days ago, from Mr. Hale, a document, the affidavit of Mussina for mandamus, which was copy, as he wrote me, filed by Mussina in the Supreme Court of the United States, and which said copy of affidavit he, the said Hale, wrote me to hand to Judge Watrous.

I am positively certain that the attorney for Mussina did not at any time during the January term, 1857, present or read any such paper in open court. From the fact that this case was an important one, and much clamor raised against Judge Watrous about it, I have been particular in noticing all the action taken by counsel in court in relation thereto, and thus the reason why I am so positively certain as to the statement above made.

J. A. H. CLEVELAND.

Subscribed and sworn to before me, this fourteenth day of January, 1858.

F. J. PARKER, U.S.C.ommissioner.

United States District Court for the District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

I, Joseph E. Love, deputy clerk of the United States District Court for the eastern district of Texas, do, upon oath, depose and say, in addition to my affidavit of this date, previously made and sworn to before F. J. Parker, commissioner, etc., at the request of Ebenezer Allen, of counsel for the plaintiffs in the above-entitled and numbered cause, that I have this day carefully examined the minutes of the court for the entire month of January, 1857, and find that they contain no entry whatsoever in the said cause, of or relating to any proceeding had therein, either upon the said petition of appeal mentioned in the affidavit of Simon Mussina, filed in the Supreme Court of the United States, at the December term thereof, 1857, (as appears by a copy of said affidavit, duly certified by William Thomas Carroll, clerk of said court, which I have read,) or upon any other matter whatsoever pertaining to said cause. And I further say, that if any action had been taken or proceeding had in said cause, in open court, upon said petition, or touching the matter thereof in any manner whatsoever, the same would have been entered at the time, and would now appear upon the said minutes.

J. E. LOVE.

Sworn to and subscribed before me, this fourteenth day of January, A. D. 1858.

F. J. PARKER. U.S.C.ommissioner for the Eastern District of Texas.

RAFAEL GARCIA CAVAZOS ET AL. v. CHARLES STILLMAN ET AL. In Chancery, at Galveston.

I, John S. Jones, make oath and say, that I was crier of the District Court of the United States for the eastern district of Texas, at Galveston, during the January term, 1857, of said court; that during the most of the time said suit was pending in said court, I was deputy clerk thereof, and was familiar with said cause, and that but little transpired in the progress of said cause, of any importance, with which I was not familiar.

I further say that said cause was one of deep and exciting interest, and that circumstances attending said cause drawing attention especially thereto.

And I further say, that from the 1st to the 15th of January, 1857, I was but rarely absent from said court during its sessions, and that I have no recollection of any application having been made in open court, during the time aforesaid, for an appeal in said cause, nor do I believe that such application could have been made and refused by the court without my knowledge. I further say, that I am personally acquainted with some of the parties, and am well acquainted with almost every counsellor who from time to time was engaged in said cause.

JOHN S. JONES.

Sworn to and subscribed before me, this 14th day of January, A. D. 1858.

F. J. PARKER, U.S.C.ommissioner for the Eastern District of Texas.

United States District Court for the District of Texas-now the United States District Court for the Eastern District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

On motion of J. P. Benjamin, of counsel for Jacob Mussina and Angela Garcia Lafon de Tarneva, two of the defendants in the above-entitled cause, ordered that the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, show cause on the first Monday of February next why a mandamus should not issue, directing him to allow the appeal of said defendants from the final decree rendered against them in the above-entitled cause, and to grant all such legal orders as may be necessary to enable said defendants to bring said appeal regularly before this court.

United States District Court for the District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

Simon Mussina, being duly sworn, deposeth that he is the agent of Patrick C. Shannon, Jacob Mussina, and Angela Garcia Lafon de Tarneva, three of the defendants in the above-entitled cause, and is intrusted by them with the care and protection of their interests in said suit; that said suit was instituted in the District Court of the United States, having and exercising the powers and jurisdiction of a Circuit Court of the United States for the district of Texas, on the 12th day of January, 1849, and that a final decree was rendered in said cause, against said three defendants and other co-defendants, by the Hon. John C. Watrous, judge of said court, on the 15th day of January, 1852, and that an appeal was taken from said final decree by said Shannon on the 30th July, 1856, which appeal is now pending in this honorable court; that at the last term of this honorable court, to wit, in the month of December, 1856, this affiant retained the services of counsel for the argument of said cause in this court in behalf of said Shannon, and that, on examination of the record, this deponent was advised by said counsel that the said appeal had been taken irregularly, and would be dismissed for this, to wit, that the said final decree was joint against the several defendants in said suit, and that the co-defendants of said Shannon had not joined in the appeal, nor been notified to join; that thereupon this deponent, being desirous to perfect said appeal in behalf of said Shannon, and also desirous to make said Jacob Mussina and Angela Tarneva joint appellants with him, did, prior to the expiration of five years from the date of said final decree, to wit, in the month of January last, (1857,) and several days before the fifteenth day of said month, cause to be presented to the said Judge Watrous, in chambers, a petition of appeal in the name and behalf of said Jacob Mussina and Angela Tarneva from said final decree, and in said petition prayed for a citation of all parties in interest, to the end that said co-defendant, Patrick C. Shannon, might join in said appeal, and that all the other co-defendants might also join or refuse to join in said appeal; and said petition of appeal further contained an offer to give such appeal bond as might be required by said Judge Watrous; as the whole will more fully appear by reference to a duly-certified copy of said petition of appeal, hereunto appended as part of the affidavits, marked A.

And this affiant doth further depose, that the said honorable judge declined at the time of said presentation of said petition to allow said appeal, or to order the other parties in interest to be cited, or to fix the amount of or approve any appeal bond, but declared that he would consider the subject, and report his decision to the attorney who signed said petition of appeal; that after the lapse of some days, without any decision having been given as promised by said judge, he was again requested in open court, and, prior to the said fifteenth day of January last, and by the said attorney who had signed said petition of appeal, to allow said appeal and grant said order of citation, and approve an appeal bond as aforesaid; but said Judge Watrous again declined to allow said appeal or grant any order in the premises, saying he would fix the amount of bond to be given by petitioners when the opposite counsel should be in court; and this deponent further saith that the said John C. Watrous, judge as aforesaid, hath not yet allowed said appeal, but declines and neglects to allow the same, or to grant any order for citations as aforesaid, or to approve any appeal bond, so that, without the aid and interposition of this honorable court, the said Patrick C. Shannon, Jacob Mussina, and Angela Garcia Lafon de Tarneva, are utterly without remedy in the premises, and without the means of exercising their legal right of having said final decree examined and revised on appeal in this honorable court.

SIMON MUSSINA.

Sworn and subscribed in open court.

WM. THOS.C.ARROLL, Clerk Supreme Court of the United States.

December 24, 1857.

United States of America, District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

To the Honorable John C. Watrous, Judge of the United States District Court for the District of Texas.

The petition of Jacob Mussina and Angela Garcia Lafon de Tarneva, who are defendants with Patrick C: Shannon in the above-entitled and numbered cause, and in which said cause a final decree was rendered in this court on the 15th day of January, 1852, being the highest court in which a decision could be had; that the real estate disposed of by said decree, and the property there set forth, was of more than two thousand dollars in value; that the decision and decree of your honorable court, rendered in the above-entitled and numbered cause, was adverse to the right title, &c., of petitioners, and that it so appears of record; that said Patrick C. Shannon, the co-defendant of petitioners, having prayed an appeal to the United States court from the decision of your honor, petitioners referring to the petition of said Shannon, and the appeal bond filed in said cause by the said co-defendant, now comes and prays your honor to allow your petitioners to join and unite with your co-defendant in said appeal from the decree rendered as aforesaid by your honor, and that all parties in interest be cited, &c., and for such orders as may be necessary in effecting said appeal; and petitioners are ready to tender such bond for costs, &c., as may be required, &c., by this honorable court.

JACOB MUSSINA,

ANGELA LAFON DE TARNEVA,

By their Attorney, DANIEL D. ATCHISON.

United States of America, Eastern District of Texas.

I, James Love, clerk of the District Court of the United States for the eastern district of Texas, certify the foregoing to be a true copy of the original-purporting to be a petition for appeal to the Supreme Court of the United States in the case No. 41 in chancery, wherein Rafael Garcia Cavazos and others are complainants, and Charles Stillman and others are defendants, by Jacob Mussina and Angela Garcia Lafon de Tarneva.

In testimony whereof I hereunto set my hand and affix the seal of said court at the city of Galveston, this eighth day of July, A. D. 1857.

JAMES LOVE, Clerk.

Mr. Justice McLEAN delivered the opinion of the court.

A motion was made at this term for a rule on the district judge of Taxes to show cause why a mandamus should not be issued, commanding him to allow an appeal in the above case. This rule was granted on the affidavit of Simon Mussina, as agent for a part of the defendants.

In his answer the judge says, 'I am now ready to allow the appeal, and always have been; that some time before the 15th day of January, 1857, Mr. Daniel Atchison, of Galveston, stated to him, at chambers, that he wished to take an appeal for Jacob Mussina in the above case, and that the judge inquired whether the time limited for taking appeals had expired, and was informed it had not. The judge then replied, 'Mr. Mussina has a right to an appeal, and I will allow it as a matter of course, when the opposing counsel shall appear, and I will fix the amount of the bond.' It is his practice to allow appeals in the presence of counsel. Mr. Hale, the counsel for the defendants, lives in Galveston, near to the place where the court was held, and was daily in court. No application seems to have been made in court on the subject of the appeal; no citation was presented to the district judge; no bond for his approval. The conversation with Mr. Atchison, at the chambers of the judge, respecting the appeal, is all that was said to him on the subject.

If it were mentioned in open court, he has no recollection of it.

The clerk of the court, the deputy clerk, the crier, the marshal of the United States and his deputy, who were in attendance on the court, all corroborate, on oath, the statement of the judge, and say no application was made in open court for the appeal; and no entry on the docket is found of such an application. From the certified copy of the petition for an appeal, it does not appear to have been filed, or that an entry of it was made on the docket.

A party wishing an appeal should make an application for its allowance in open court, or to the judge at his chambers, and should name his securities. And the bond should be prepared for the approval of the judge, and the citation for his signature, unless the appeal was prayed in open court and entered upon the record. It appears the decree in question was entered jointly against several defendants, and that an appeal by Patrick C. Shannon only, who was one of the defendants, was taken. Simon Mussina, on whose oath the rule was entered, was agent for Jacob Mussina, Angela Garcia Lafon Tarneva, who were also defendants, and he desired that these persons might be allowed an appeal, and also the other defendants, so as to remove the case to the Supreme Court. At this time, the cause was pending in the Supreme Court, on the appeal taken by Shannon. That appeal was irregular, as less than all the defendants in a joint decree cannot appeal without a summons and severance in the court below. And this was not done on Shannon's appeal.

The regular mode of proceeding would have been to dismiss the appeal in this court, pray for another appeal in the court below, and for a summons and severance, so that the defendants desirous of an appeal might take it, without the concurrence of those defendants who were opposed to it. Had the appeal been prayed in open court, and entered upon the record, the judge below might well have refused it, as the legal steps for its allowance were not taken. Under such circumstances, it was the duty of the judge to act in the presence of the opposing counsel. (Owing et al. v. Kincannon, 7 Peters, 399; Todd et al. v. Daniel, 16 Peters, 521.)

Whether an application might not have been made to this court to correct the irregularity of the appeal, is not before us under the rule for the mandamus. The writ is refused.


text: Talk:Ex parte in the Matter of Mussina v. Cavazos/Opinion of the Court

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text:
Silsby v. Foote (61 U.S. 290)

THIS was an appeal from the Circuit Court of the United States for the northern district of New York, sitting as a court of equity.

There were two cases upon the docket, with precisely the same caption, one numbered 54, and the other 106.

The case in question was the one numbered 106, which it was moved to dismiss, for the following reasons:

And the said appellee comes into court at the December term thereof, 1857, and moves the said court to dismiss the appeal in this cause, docketed as No. 106 at the said term, upon the ground that there had been previously taken by the said appellants an appeal from the same portions of the decree made below, which are appealed from in this cause, and which prior appeal is still pending and undetermined in this court; and such motion will be made upon the records filed in this cause, and in cause No. 54 on the docket for December term, 1857.

R. H. GILLET,

December 18, 1857. Of Counsel for Appellee.

Mr. Gillet's argument was as follows:

Foot sued Silsby and others in equity in the Circuit Court for the northern district of New York, for violating his patent. A final decree was rendered therein on the 28th day of August, 1856. On the 4th of September thereafter, the defendants, by Samuel Blatchford, their solicitor, petitioned for an appeal from certain portions of the decree, which was allowed on the 6th September, by Mr. Justice Nelson, being within ten days of the date of the decree. Upon this appeal, the record of the proceedings were sent, and have been printed, and the case stands as No. 54 on the docket for the present term. (See Record in No. 54, Record, pp. 1, 3.)

The decree was enrolled on the 11th day of December, 1856, on which day the same solicitor, in behalf of the defendants, presented a second petition of appeal from the same portions of the decree, which appeal was allowed on the same day, by N. K. Hall, district judge, and this appeal is now before the court at the present term as No. 106. (See Record, pp. 1, 3.)

A motion is now made by Foot, the appellee, to dismiss the last-mentioned appeal, of which due notice has been given.

The question presented is, which of the two periods is the one contemplated by the twenty-second section of the judiciary act of 1789, which provides, 'that final judgments and decrees may be removed and reaffirmed in the Supreme Court, and which shall not be done, however, except within five years after the rendering or passing the judgment judgment or decree complained of.' (1 U.S. L., 84, 85, sec. 22.)

When was the decree passed-at the time of the hearing and actual decision, or when it was enrolled?

This question is answered by reference to the mode of doing business in a court of equity. The court sits and decides, and its clerk or other officer enters the same in the minutes of the proceedings of the court. This is the act of the court performing its highest judicial functions. All that follows, whether performed by the clerk or judge, is merely carrying out the judicial determination, and authenticating it. The decision, or rendering, or passing, has been made; and what is subsequently done is mere authentication.

'To enrol' means 'to register, to enter on the rolls of chancery or other courts, to make a record.' (Bouvier, 1 vol., 469.)

'Enrolment-the registering or entering on the rolls of Chancery, King's Bench, Common Pleas, or Exchequer, or by the clerk of the place of the record of the Quarter Sessions of any lawful,' &c. (Ib., Inc. L. Dic.)

Curtis, in his Commentaries, (p. 234,) speaks of the time when a decree is 'pronounced,' as the time from which the statute runs.

At page 534 he speaks of the 'date of the final decree;' if appealed from in ten days thereafter, it will operate as a supersedeas.

Appeals have been recognized on appeal before docketing or enrolling. In Roy v. Law, 3 Cranch, 179, a decree for a sale on a mortgage was held to be a final decree which could be appealed from.

In Whiting v. Bank of U.S., 13 Peters, 6, 15, the same decision was made.

Story, J., said the party had a right to appeal as soon 'as the decree was pronounced.' Michond v. Girod, 4 How., 503, proceeded upon the same ground.

title: Silsby v. Foote (61 U.S. 290)


text: Talk:Silsby v. Foote (61 U.S. 290)

title: Talk:Silsby v. Foote (61 U.S. 290)


text:
Silsby v. Foote (61 U.S. 290)/Opinion of the Court

In Forgay v. Conrad, 6 How., 201, 203, the above cases were cited and approved.

Bank of the U.S. v. Daniel, 12 Peters, 32, p. 52. The whole of the matter in dispute has reference to the date of the decree.

Corning v. The Troy Iron and Nail Factory, 15 How., pp. 451, 459, 465, 466, is a case to show that there can be no second appeal where the subject-matter has been removed from the court below.

In the present case, the matters appealed from in December had been removed from the court below in September, and there was nothing left for the second appeal to act upon.

Mr. Blatchford opposed the motion.

This is a motion to dismiss No. 106, on the ground that a prior appeal has been taken in No. 54, from the same parts of the same final decree.

What is the decree?

The question is, which is regular?

If the appeal in 106 is irregular, it is because the appeal in 54 is regular. If the appeal in 106 is regular, then the appeal in 54 is irregular. The reasons for taking the two appeals were these: Practically, there is no difference to defendants, except as to the return in No. 106. (See rules 31 and 32, as to complete record.) The court will see why return was so made in 106. Cross appeal in 158, return made in same manner. Taking 54 and 106 together, there is a complete record; and even though the court dismiss 54, they may consider the return in 54 as forming part of the return in 106, as the clerk says, in his return in 106, they do. And if the court deny the motion to dismiss 106, they will please consider us as moving to dismiss 54, which motion would of course be granted, if the motion to dismiss 106 is denied; and then as moving, if necessary, under rule 32, for a certiorari to complete the record in 106. We desire the court to dispose now of all questions of practice connected with these cases, so that if 106 stands for hearing, it may stand with complete record. The defendants ought not to suffer for the clerk's mistake, but, without a certiorari, the court can order the record in 54 to remain here, and form a part of the record in 106, though the appeal in 54 is dismissed.

By p. 22 of the judiciary act of 1789, as modified by p. 2 of the act of March 3, 1803, (chap. 40,) an appeal from a final decree is to be taken within five years after rendering or passing the judgment or decree complained of.

By p. 23 (as so modified) the appeal is a supersedeas, and stays execution in cases only where the appeal is taken, and a copy lodged for the adverse party within ten days (Sundays exclusive) after rendering the judgment or passing the decree complained of, until the expiration of which ten days, execution shall not issue in any case where an appeal may be a supersedeas.

What is the passing of the decree?

Under p. 23, we think it is the recording and enrolling of the decree, in such shape that the party entitled to execution on it can immediately issue his execution. The party is to be stayed for having his execution for ten days after the time when he would otherwise be entitled to it, and the ten days do not begin to run till he would be at liberty, but for this stay, to issue his execution.

Therefore, taking pp. 22 and 23 together, the decree is passed, when it is in such a state that an execution can be issued on it, if there be no stay by appeal.

How it is as to the decree. (See pp. 10 and 11, of No. 106.)

Award to pay certain sums, and interest and costs to be taxed, and interest, then execution is given for such costs, and for the sums decreed. He cannot have any execution till his costs are taxed. This is by the decree itself.

But beyond that, by general equity practice, he can have no execution till the decree is signed and enrolled. Here the record says (p. 11) that this final decree is signed and enrolled Dec. 11th, 1856, and the appeal in 106 was taken the same day.

Why can't he have execution till the decree is enrolled? Because, till then, the decree is open for rehearing; but after that it is not.

Rule 88 in equity says, 'No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court.' Entry alone does not cut off rehearing. The decree must be recorded, to cut off a rehearing. Recording is enrolling. Therefore, there can be a rehearing till the decree is recorded or enrolled, and there can be no execution till a decree is enrolled. And the right to execution on the one side gives, under pp. 22 and 23, the right to appeal on the other side. Because the act manifestly contemplates that the decree is not passed till the right to execution under it is ripened. Because the ten days spoken of in p. 23 are to run from the passing of the decree, and during that ten days there is to be no execution. Hence, to make the provisions all harmonious, the right to issue execution, but for the stay, must be simultaneous with the passing of the decree.

Now, is it laid down in all the books that there can be no execution till enrolment, and that enrolment is necessary to make the decree a record? (1 Barb. Ch. Pr., 342, 2 Dan.; Perkins, ed. of 1846, 1220, 1221.) It will not, till enrolment, be treated by other courts as a record. The reason given is, because, till then, it is open for rehearing. Hence in rule 88 the word recorded is used, which means made a record by enrolment.

Till enrolled, it can't be pleaded in bar to another suit for the same matter. (Same reference as above.)

In England, the time for appeal runs two years from the enrolment. (3 Dan., 131.)

Besides, under p. 22, in connection with the act of Dec. 12, 1794, on an appeal which is to be a stay, security is to be given for the amount recovered below, damages and costs. (Catlett v. Brodie, 9 Wheat., 553.) How can the amount recovered below, for which this security is to be given, be ascertained till the costs are taxed and the decree enrolled?

The views we maintain seem to follow from those announced by this court in Forgay v. Conrad, 6 How., 204. 'When the decree directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one.'

Here a sum of money is directed to be paid, but there can be no execution on the decree till the costs are taxed and the decree is signed and enrolled. Therefore, on the 28th of August, 1857, the plaintiff was not entitled to have the decree carried immediately into execution, and the appeal in 54 was irregular.

As to arguing the cross appeal in 158 with the original appeal, whether it be 54 or 106, the record in 158 is not printed. We prefer to wait.

Plaintiff might have taken his cross appeal as early at least as Dec. 11, 1856. He waited till July, 1857. It is his own fault. We had to appeal, to stay execution.

Mr. Justice NELSON delivered the opinion of the court.

This is a motion to dismiss an appeal docketed as No. 106, on the ground that a previous appeal, docketed No. 54, had been taken by the same parties, and from the same portions of the decree below. The final decision had been made by the court, between the parties, on the coming in of the master's report on the 28th August, 1854, and an appeal duly taken on the 4th September following. The decree was special in its terms, and was not settled or signed by the judge till the 11th December, 1856, on which day the second appeal was taken. As the appellant desired to appeal within the ten days, so as to stay execution, the second appeal was taken for abundant caution, as there might be a doubt from which period the ten days should be counted, namely, the time of the final decision of the court, or of the signing and filing of the special decree in form.

By the twenty-second section of the judiciary act, modified by the second section of the act of March 3, 1803, an appeal from a final decree must be taken within five years after the rendering or passing of the judgment or decree complained of. And by the twenty-third section, as modified above, the appeal is a supersedeas, and stays execution in cases only where it is taken and a copy lodged for the adverse party within ten days (Sundays exclusive) after rendering the judgment or passing the decree complained of. The time to be taken as when the judgment or decree may be said to be rendered or passed may admit of some latitude, and may depend somewhat upon the usage and practice of the particular court. In the case of a simple judgment or decree, such as an affirmance or reversal, and the like, there would seem to be no difficulty in taking the appeal at any time within the ten days after the decision on the case was pronounced. But where the decree is special, and its terms to be settled, there is a propriety in waiting for its settlement before taking the appeal. Whether taken or not, may sometimes depend upon the decree as settled. In the second circuit, with the practice of which I am the most familiar, it is supposed by many of the profession that the proper time for taking the appeal in such a case is after the settlement of the decree. As this court, however, has always held, that if an appeal is taken in court at the time of rendering the decision, or during the term, no citation is necessary, and as appeals are, perhaps, more frequently taken within the ten days after the decision is pronounced and entered on the minutes by the clerk, it may be admitted that when thus taken it is regular, and stays execution in the court below. And we are also of opinion, that if taken within ten days after the decree is settled and signed by the judge, and filed with the clerk, that it is in time to stay the proceedings. The recognition of the two periods from which the ten days may be counted becomes necessary, on account of the difference in the modes of proceeding and practice in the different circuits. This question cannot arise in England, as the time for appeal runs two years from the enrolment of the decree. (3 Dan. Pr., 131.) The time of enrolment cannot well be adopted by this court, as on many of the circuits it is understood, according to the practice, no enrolment of the decree takes place.

As, upon our view of the case, presented on the motion, the first appeal was regular, the one taken and standing on the docket No. 106 should be dismissed.


text: Talk:Silsby v. Foote (61 U.S. 290)/Opinion of the Court


text:
Jackson v. Magnolia

THIS was an appeal from the District Court of the United States for the middle district of Alabama.

The case came up on an appeal from the judgment of the District Court, dismissing the libel for want of jurisdiction, after the following agreement had been filed:

Be it remembered, that on the trial of this cause, which was a libel in admiralty, it was agreed that the question of jurisdiction should be submitted to the court on the facts hereinafter stated, which were admitted to be true; and if the court should be of the opinion that the court had jurisdiction of the cause, then the cause should be submitted to a jury for trial. But if the court should be of opinion that it was without jurisdiction, the libel would be dismissed, and in the event an appeal was taken to the Supreme Court of the United States, and the judgment of that court should reverse the judgment of this court, then the cause should be remanded to this court for trial.

The court agreed so to try the question of jurisdiction on the facts, which are admitted to be as follows: The steamboat Wetumpka was a vessel engaged in navigation and commerce between the port of New Orleans, in Louisiana, and the port of Montgomery, in Alabama, and was regularly licensed and enrolled as a coasting vessel, and was of more than thirty tons burden. The steamboat Magnolia was a boat regularly licensed and enrolled for the coasting trade, but was built for a packet boat to be employed between Mobile, Alabama, and Montgomery, Alabama. She was built in the Western country, and brought round to this State, and has ever since been engaged in running between Mobile and Montgomery, and has never been engaged in any other trade.

The collision, which is the subject of the libel against the Magnolia, took place between her and the Wetumpka, on the Alabama river, about two hundred miles above tide-water. The Magnolia is a boat of over thirty tons burden. The foregoing are the facts in which the question of jurisdiction is submitted to the court, together with the libel and claim, and answer thereto.

WATTS & DARGAN, For the Magnolia and Claimants.

HENRY C. SEMPLE, For the Libellants.

The case was argued at the preceding term of this court upon printed arguments by Mr. Francis Lee Smith for the appellants, and Mr. Dargan for the appellees; also orally by Mr. Phillips for the appellees.

The difficulty of abbreviating arguments made by counsel upon constitutional points, and the circumstance that both sides of the question of jurisdiction are fully presented in the opinion of the court and in the dissenting opinions of Mr. Justice DANIEL and Mr. Justice CAMPBELL, are reasons why the Reporter omits sketches of the arguments of counsel. It will be perceived, also, that Mr. Justice McLEAN delivered a separate opinion, although concurring in the judgment of the court.

Mr. Justice GRIER delivered the opinion of the court.

title: Jackson v. Magnolia


text: Talk:Jackson v. Magnolia

title: Talk:Jackson v. Magnolia