BROWN V. MCCONNELL
| Decision Date | 30 January 1888 |
| Citation | 124 U. S. 489 |
| Court | U.S. Supreme Court |
APPEAL FROM THE SUPREME COURT
OF THE TERRITORY OF WASHINGTON
The signing of a citation returnable to the proper term of this Court, but without the acceptance of security, nevertheless constitutes an allowance of appeal which enables this Court to take jurisdiction and to afford the appellants an opportunity to furnish the requisite security here before peremptorily dismissing the case.
Castro v. United States, 3 Wall. 46, and United States v. Curry, 6 How. 106, distinguished.
Motion to dismiss. The case is stated in the opinion of the Court.
The facts on which this motion rests are these:
A judgment was rendered by the Supreme Court of the Territory of Washington, July 18, 1885, dismissing an appeal. On the 15th of July, 1886, Lorenzo D. Brown and Leander Holmes presented a bond as security for an appeal from this judgment to one of the justices of that court, and he, on the 21st of that month, endorsed upon it his approval. On the 17th of November, 1886, a citation was signed by the same justice requiring McConnell, as appellee, to appear in this Court to answer the
appeal "on the second Monday in October next," which was the first day of the present term. This citation was served on McConnell the day of its date. On the twenty-third of May, 1887, which was the last Monday in our term of 1886, the appeal was docketed and dismissed under Rule 9 on motion of counsel for the appellee. On the 4th of August, 1887, the case was again docketed by the appellants. This motion is to dismiss upon that docketing.
Even if it should be conceded that an appeal was allowed by the approval of the bond July 21, 1886, that appeal became inoperative by the failure of the appellants to docket the case at our term of 1886, and by the order to dismiss made upon the docketing by the appellee. The rights of the parties depend, therefore, on the legal effect of the signing of the citation on the 17th of November, 1886, returnable to this term without taking any new security.
Sage v. Railroad Co., 96 U. S. 712, 714; Draper v. Davis, 102 U. S. 370, 371; Brandies v. Cochrane, 105 U. S. 262.
In the present case, there was the signing of a citation returnable to the present term, but no acceptance of security, and the question presented is whether that is enough of itself to constitute an allowance of an appeal such as will give this Court jurisdiction, and if it is, whether, before dismissing the case peremptorily, we may permit the appellants to give the requisite security here. O'Reilly v. Edrington, 96 U. S. 724, 726.
An appeal to this Court in a proper case is matter of right, and its allowance is in reality nothing more than the doing of those things which are necessary to give the appellant the means of invoking our jurisdiction. A writ of error is the process of this Court, and it is issued therefore only upon our
authority; but an appeal can be taken without any action by this Court. All that need be done to get an appeal is for the appellant to cite his adversary in the proper way to appear before this Court, and for him to docket the case here at the proper time. Such a citation as is required may be signed by a judge of the circuit court from which the appeal is taken or by a justice of this Court. Rev.Stat. § 999. As appeals from territorial courts are to be taken in the same manner and under the same regulations as from the circuit courts (Rev.Stat. § 703), it follows that citations on such appeals may be signed by a judge or justice of the territorial court, or by a justice of this Court.
If an appeal is taken by the action of the court in session before the end of the term at which the decree is rendered, no formal citation is necessary, because, both parties being constructively in court during the entire term, they are charged by law with notice of all that is done in the case affecting their interests. But if the necessary security is not taken until after the term, a citation is required to bring the appellee before us, although, if the case is docketed here in time, it will not be dismissed at the return term until an opportunity has been afforded the appellant to give the requisite notice. The appeal taken in open court, if docketed here in time, gives this Court jurisdiction of the subject matter and invests it with power to make all orders,...
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Terminal Ass of St Louis v. United States, 115
...Revised Statutes, §§ 999, 1012 (Comp. St. §§ 1659, 1673) Sage v. Railway Co., 96 U. S. 712, 715, 24 L. Ed. 641; Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495. The original decree was not enlarged by the decree appealed from. And, as there is no cross-appeal, no question is ......
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