Credit Co v. Arkansas Cent Ry Co

• Decision Date: 19 November 1888
• Citation: 9 S.Ct. 107,32 L.Ed. 448,128 U.S. 258
• Parties: CREDIT CO., Limited, v. ARKANSAS CENT. RY. CO. et al
• Court: U.S. Supreme Court

128 U.S. 258

9 S.Ct. 107

32 L.Ed. 448

CREDIT CO., Limited, v. ARKANSAS CENT. RY. CO. et al.

November 19, 1888.

Matt. G. Reynolds, Geo. W. Caruth, J. B. Henderson, and James M. Lewis, for appellant.

J. J. Hornor, for appellees.

BRADLEY, J.

This was a bill filed by the appellant on the 15th day of April, 1882, to set aside a sale of the Arkansas Central Railroad, made by the master in chancery on July 26, 1877, under a decree rendered in the district court of the United States for the Eastern district of Arkansas, at Helena, on the 17th day of March, 1877, at the suit of the Union Trust Company of New York against the railroad company, foreclosing a mortgage executed to secure certain bonded indebtedness. On January 22, 1883, a final decree was entered, dismission the bill for want of equity. On the same day, to-wit, January 22, 1883, an appeal to this court was prayed for and allowed, but it was never prosecuted; no bond being given, no citation issued, and no return of the record being made to this court at the ensuing term. That appeal, therefore, ceased to have any operation or effect, and cannot avail the appellant. Brooks v. Norris, 11 How. 207; The Virginia, 19 How. 182; Castro v. U. S., 3 Wall. 46; Mussina v. Cavazos, 6 Wall. 355; Grigsby v. Purcell, 99 U. S. 505; The Tornado, 109 U. S. 110, 3 Sup. Ct. Rep. 78; State v. Demarest, 110 U. S. 400, 4 Sup. Ct. Rep. 25; Killian v. Clark, 111 U. S. 784, 4 Sup. Ct. Rep. 700. On the 22d day of January, 1885, exactly two years after the entry of the decree, a petition for an appeal was presented by the solicitor of the complainant to Mr. Justice MILLER, and allowed by him. At the same time Justice MILLER signed a citation to the defendants to appear in the supreme court of the United States at the then next term thereof, to answer the appeal. A bond for costs in the sum of $1,000 was also at the same time presented to and approved by the the same justice. These papers were not presented to the circuit court, nor filed with the clerk thereof, until the 27th day of January, 1885. On that day the following order was made an entered in the case, to-wit: 'Comes N. & J. Erb, and pray the court to enter an order granting to the plaintiff an appeal in this cause to the supreme court of the United States; which motion is denied, such appeal having heretofore been granted. It is ordered by the court that this entry bear date as of January 22, 1885.' And on the same day the following order was entered in this cause: 'Comes N. & J. Erb, attorneys for said plaintiff, and file here in court a prayer for appeal to the supreme court of the United States, and the allowance of said appeal by Mr. Justice MILLER, on the 22d day of January, 1885; also a citation signed by Mr. Justice MILLER, and bond for costs approved by said justice. Which prayer for appeal to the supreme court of the United States, and the allowance of said appeal by said justice, is as follows, [then copying the petition for appeal, the allowance, citation, and bond; which papers were indorsed: 'Filed Jan. 27, 1885. RALPH L. GOODRICH, Clerk.']' This is all that is shown by the record in regard to the taking of the appeal; from which it appears that the appeal was allowed by Justice MILLER on the last day on which an appeal could be taken, but was not presented to the court below, nor filed with the clerk, until five days after said time had expired.

The language of the statute is that 'no judgment, decree, or order of a circuit or district court, in any civil action at law or in equity, shall be reviewed in the supreme court on writ of error or appeal, unless the writ of error is brought, or the appeal is taken, within two years after the entry of such judgment, decree, or order.' Rev. St. U. S. § 1008. It was decided in Brooks v. Norris, 11 How. 204, that 'the writ of error is...