Brockett Et Al v. Brockett

CourtUnited States Supreme Court
Writing for the CourtSTORY
Citation11 L.Ed. 251,2 How. 238,43 U.S. 238
Decision Date01 January 1844
PartiesBROCKETT ET AL. v. BROCKETT

43 U.S. 238
2 How. 238
11 L.Ed. 251
BROCKETT ET AL.
v.
BROCKETT.
January Term, 1844

THIS was an appeal from the chancery side of the Circuit Court of the United States for the District of Columbia.

The case was not reached in regular order, but a motion was made, under the rule, to dismiss the appeal under the following state of facts.

Page 239

A final decree was pronounced in the court below on the 10th of May, 1843, from which an appeal was prayed. A petition to re-open the decree was filed during the term, and referred to a master, who reported on the 9th of June following. Upon his report the court refused to open its former decree, and from this refusal, as well as from the original decree, an appeal was prayed, in which all the parties joined. On the 15th of June, the bond was executed by three of the parties, not being all.

Jones and Brent moved to dismiss the appeal on the following grounds, and cited 8 Pet., 526.

1. For irregularity, on account of the failure of the appellants to give the proper appeal bond; the bond given having been executed by only a part of the defendants in the court below, and for other reasons in the record.

2. That notwithstanding said bond may be regular, the appeal ought to be dismissed as to that part taken from the refusal of the court below, to open the final decree made upon the 10th of May, 1843; the said refusal having been made in the discretion of the court below and not 'a final decree or order' from which an appeal can be taken.

3. That the parties are not named in the writ of error and citation.

Bradley and Neale opposed the motion.

The motion in this case is put upon two grounds. As to the first, the bond, it will be seen by reference to the record that a final decree was rendered on the 10th day of May, 1843, from which an appeal was prayed by all the parties.

During the same term a petition was filed by Robert Brockett to have that final decree opened for certain purposes. And the court referred it to the commissioner. The commissioner made his report, and on the 9th day of June, 1843, the same term still continuing, the court refused to open the final decree; and from this refusal, as also from the final decree of the 10th of May, an appeal was taken, and the court then directed the penalty of the bond. All the parties joined in this appeal also. The bond bears date the 15th June, 1843, and is executed by three of the parties in the decree, and by their sureties.

Under this state of facts the appellants maintain, First, That the bond was property given, and as the law requires.

Page 240

The law requires that all should join in the appeal, but does not direct or require that they should...

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59 practice notes
  • Atl. Greyhound Corp. v. Pub. Serv. Comm'n, No. 10079.
    • United States
    • Supreme Court of West Virginia
    • April 5, 1949
    ...the question. 2 Enc.Pl. & Prac. 137; [New York, C. & St. L.] Railroad Co. v. Doane, 105 Ind. 92, 93, 4 N.E. 419. "In Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, it was held that a petition[54 S.E.2d 177]filed for a rehearing during the term, and entertained by the court, suspended the d......
  • Maryland Tuna Corporation v. Ms Benares, No. 421
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 2, 1970
    ...Texas & P. Ry. Co. v. Murphy, 111 U.S. 488, 489, 4 S.Ct. 497, 28 L.Ed. 492 (1884); Brockett v. Brockett, 43 U.S. (2 How.) 238, 241, 11 L.Ed. 251 (1844). Accord, Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150, 63 S.Ct. 133, 87 L.Ed. 146 (1942); Wayne United Gas Co. v. Owen......
  • Hendryx v. Perkins, 378.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 13, 1902
    ...upon the circumstances of the particular case, that it was distinctly held by the supreme court in Brockett v. Brockett, 2 How. 238, 240, 11 L.Ed. 251, as well as in Connor v. Peugh's Lessee, 18 How. 394, 15 L.Ed. 432, that, a motion to set aside a judgment being directed to the sound discr......
  • Mutual Health & Benefit Ass'n v. Cranford, 31337
    • United States
    • United States State Supreme Court of Mississippi
    • October 15, 1934
    ...Merchants, etc., Bank, 42 S.E. 490; U.S.C. A., Title 28, secs. 230 and 344; King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Brockett v. Brockett, 2 How. 238; Slaughter House cases, 19 L.Ed. 915; Texas-Pacific Ry. Co. v. Murphy, 111 U.S. 488, 28 L.Ed. 492; Memphis v. Brown, 94 U.S. 711, 24 L.Ed. 2......
  • Request a trial to view additional results
59 cases
  • Atl. Greyhound Corp. v. Pub. Serv. Comm'n, No. 10079.
    • United States
    • Supreme Court of West Virginia
    • April 5, 1949
    ...the question. 2 Enc.Pl. & Prac. 137; [New York, C. & St. L.] Railroad Co. v. Doane, 105 Ind. 92, 93, 4 N.E. 419. "In Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, it was held that a petition[54 S.E.2d 177]filed for a rehearing during the term, and entertained by the court, suspended the d......
  • Maryland Tuna Corporation v. Ms Benares, No. 421
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 2, 1970
    ...Texas & P. Ry. Co. v. Murphy, 111 U.S. 488, 489, 4 S.Ct. 497, 28 L.Ed. 492 (1884); Brockett v. Brockett, 43 U.S. (2 How.) 238, 241, 11 L.Ed. 251 (1844). Accord, Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150, 63 S.Ct. 133, 87 L.Ed. 146 (1942); Wayne United Gas Co. v. Owen......
  • Hendryx v. Perkins, 378.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 13, 1902
    ...upon the circumstances of the particular case, that it was distinctly held by the supreme court in Brockett v. Brockett, 2 How. 238, 240, 11 L.Ed. 251, as well as in Connor v. Peugh's Lessee, 18 How. 394, 15 L.Ed. 432, that, a motion to set aside a judgment being directed to the sound discr......
  • Mutual Health & Benefit Ass'n v. Cranford, 31337
    • United States
    • United States State Supreme Court of Mississippi
    • October 15, 1934
    ...Merchants, etc., Bank, 42 S.E. 490; U.S.C. A., Title 28, secs. 230 and 344; King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Brockett v. Brockett, 2 How. 238; Slaughter House cases, 19 L.Ed. 915; Texas-Pacific Ry. Co. v. Murphy, 111 U.S. 488, 28 L.Ed. 492; Memphis v. Brown, 94 U.S. 711, 24 L.Ed. 2......
  • Request a trial to view additional results

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