Evans v. State Nat Bank of New Orleans
| Decision Date | 17 March 1890 |
| Parties | EVANS et ux. v. STATE NAT. BANK OF NEW ORLEANS. 1 |
| Court | U.S. Supreme Court |
J. J. Johnson, A. H. Garland, and H. J. May, for appellants.
James McConnell and Wm. Hallett Phillips, for appellee.
The decree in this case was rendered on the 19th of June, and a rehearing refused on the 6th of July, 1885. On the 8th of July of that year an order was entered allowing Mrs. Evans and her husband, who were complainants below, an appeal to this court upon giving bond, with security, as directed; and upon the same day the bond was filed and approved. Nothing further was done; and, the record not having been filed in this court during the succeeding term, the appeal became of no avail, because not duly prosecuted. Credit Co. v. Arkansas Central Ry. Co., 128 U. S. 258, 9 Sup. Ct. Rep. 107. On the 21st of May, 1887, Mr. and Mrs. Evans petitioned the circuit court to allow an appeal from said decree, which was on that day allowed, and entered of record, on the petitioners furnishing bond conditioned according to law. This bond was accordingly given and approved on the 3d of October, 1887, and citation issued and served, returnable at October term, 1887. The record was filed here on the 31st of March, 1888, one of the days of that term. A motion is now made to dismiss the appeal, upon the grounds that it could not be granted because the court had exhausted its power by the allowance of the first appeal, and because, if this were not so, the second appeal was not taken within two years from the entry of the decree. As to the first of these grounds, it may be remarked that when the term elapsed at which the first appeal was returnable, without the filing of the record, that appeal had spent its force, and the matter was open to the taking of a second appeal, as it would have been if the appellee had docketed the cause and had it dismissed. As to the second appeal, this was taken within the two years, by its allowance by the circuit court, and not lost, as appellants did not fail to file the record during the succeeding term. e ither the signing of the citation nor the approval of the bond was necessary to our jurisdiction, but it was essential that the record should be filed during the term at which the appeal was returnable. Under the ninth rule, it is the duty of an appellant to docket his case and file the record with the clerk of this court within the first six days of the term, where the decree was rendered thirty...
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State v. Rosser
...a second appeal. "The motion will be allowed, therefore, and the appeal dismissed without prejudice." In Evans v. State National Bank, 134 U.S. 330, 33 L.Ed. 917, 10 S.Ct. 493, cited with approval in State v. Tucker, supra, an order was entered allowing Mrs. Evans and her husband to appeal ......
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State v. Rosser
...then cites cases from fourteen different states and the United States supreme court, including in the list of authorities Evans v. State National Bank, supra, in of its decision. Many of the cases permit a second appeal prior to the dismissal of the first appeal. In Martinez v. Gallardo, 5 ......
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... ... 107, 32 ... L.Ed. 448; Edmonson v. Bloomshire, 7 Wall. 306, 19 ... L.Ed. 91; Evans v. Bank, 134 U.S. 330, 10 Sup.Ct ... 493, 33 L.Ed. 917; Brooks v. Norris, 11 How. 204, 13 ... ...
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