Farrar v. Churchill Churchill v. Farrar

• Decision Date: 19 May 1890
• Citation: 10 S.Ct. 771,135 U.S. 609,34 L.Ed. 246
• Parties: FARRAR et al. v. CHURCHILL et al. CHURCHILL et al. v. FARRAR et al
• Court: U.S. Supreme Court

135 U.S. 609

10 S.Ct. 771

34 L.Ed. 246

FARRAR et al. v. CHURCHILL et al.

CHURCHILL et al.

v. FARRAR et al.

May 19, 1890.

W. L. Nugent, for Farrar, administrator.

Alex P. Humphries and G. M. Davie, for Churchill, trustee.

FULLER, C. J.

John Churchill held title to certain lands in Mississippi as trustee for Mary M. Clark, whose husband, M. L. Clark, in 1881, employed J. H. D. Bowmar, of Vicksburg, to sell the property, which he did, to A. B. Pittman, also a resident of that city; and on the 16th of March, 1882, Churchill as trustee, and Mr. and Mrs. Clark, all residing in Louisville, Ky., conveyed the lands, and 'the mules, implements, and cattle, on the plantation, save two horses, reserved by said two parties' to Pittman. This conveyance recites that it is 'made this 9th day of January, 1882;' but the attestation clause is that the signatures are appended the 16th day of March, 1882, 'the date of the sale being of 9th January, 1882,' and the acknowledgment by the grantors is March 16th. The consideration of the conveyance was $5,000 in cash, and fur notes of Pittman for $5,000 each, bearing interest at 8 per cent., and payable at one, two, three, and four years from date. In the latter part of January, 1882, certain other personalty on the premises was sold by Clark to Pittman for $1,000 cash and three acceptances,—one for $1,000, due April 1, one for $1,000, due May 1, and one for $1,133.10, due June 1, 1882, with grace. Two of thes acceptances were transferred by Clark to the trustee, who when they matured brought a separate suit upon each of them. The other acceptance passed into the hands of a bona fide holder without notice. When the first of the notes given as consideration for the conveyance became due, suit was brought upon it, and on the 7th of November, 1883, Pittman filed his bill in the circuit court of the United States for the southern district of Mississippi against John Churchill, trustee, and Mr. and Mrs. Clark, alleging that fraudulent representations had been made to him in the sale of the plantation and accompanying personal property, and also in the matter of the personalty subsequently purchased from Clark, and asking that the three suits above mentioned be enjoined; for an account of damages suffered, and their application by way of recoupment, offering to pay whatever might be found due on a proper accounting; and for general relief. It is admitted by counsel for appellants that the controversy over the latter purchase has been satisfactorily adjusted, and that so much of the transaction is only incidentally referred to in connection with the other fraud, circumvention, and deceit alleged to have been practiced. The bill claimed failure of title as to part of the land; but this was fully met by the answer, was not pressed below, and may be regarded as out of the case. The oath to the answers was not waived, and accordingly the answer of Mary M. Clark and John Churchill, trustee, was duly verified. Clark was not served and filed no answer, but his deposition in one of the lawsuits was put in evidence.

A cross-bill was subsequently filed by Churchill and Mrs. Clark, praying that an account be had and stated between the parties; that whatever was found to be due from Pittman on the notes for the purchase money of the plantation should be decreed to be a lien thereon, and the land sold to pay the same; that cross-complainants might have judgment for the amount found due on the two notes given for the personalty; and that a receiver be appointed, etc. It was ordered by the court that the cross-bill be treated and held as for a receiver only, and the complainant's bill as the answer thereto, as well upon the motion for a receiver as at the hearing, and that the cause be referred to an examiner and commissioner to take proof upon the issues set out in the bill, and 'of the damages claimed by the complainant, and state an account between the parties, recouping against the purchase money due the defendant the damages suffered and sustained by the complainant, if any, because of the alleged frauds and misrepresentations set out in the bill, should they be established to his satisfaction.' Proofs were accordingly taken, and a report made by the special commissioner, and a final decree rendered November 5, 1885, in favor of Churchill, trustee, for the recovery from the complainant of the sum of $19,129.50, to bear interest at the rate of 8 per cent. per annum from the 2d day of September, 1885, until paid, and that said sum of money, with interest and costs, should be a first and prior lien on the lands in question, which should be sold, in satisfaction, in default of payment as provided. From this decree and appeal was prayed by the complainant, an appeal-bond duly given and approved Decmeber 1, 1885, with Thomas Rigby as surety; and the record was filed in this court November 13, 1886. The opinion of the district judge holding the circuit court was filed September 2, 1885, and appears in the record. On October 31, 1887, the defendants Churchill and Clark presented a petition for a cross-appeal to a justie of this court, and obtained an allowance thereof, an appeal-bond being approved; and a citation issued on that day. This petition was filed in the circuit court on the 7th day of November, 1887. The citation bears this indorsement: 'On this 5th day of November, in the year of our Lord one thousand eight hundred and eighty-seven, I, as administrator of the estate of Alfred B. Pittman, accept service of the within citation, and hereby enter my appearance as such administrator herein. WALTON FARRAR, Adm'r.' This citation accompanied the transcript of the petition, order, and bond on cross-appeal filed in this court November 21, 1887. It appeared from the petition that since the original appeal was taken, Alfred B. Pittman had died, and the cause had been revived in the name of Walton Farrar as administrator.

No decree in any action in equity can be reviewed by this court on appeal unless the appeal is taken within two years after the entry of such decree. Rev. St. § 1008. And appeals are subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. Id. § 1012. As it is the filing of the writ of error in the court which rendered the judgment that removes the record, the writ of error is not brought, in the legal meaning of the term, until it is so filed. Brooks v. Norris, 11 How. 204. Nor is an appeal 'taken' until it is in some way presented to the court which made the decree appealed from. Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 Sup. Ct. Rep. 107. Cross-appeals must be prosecuted like other appeals, and therefore the cross-appeal is not taken until brought to the attention of the court whose decree it questions. Although the record may have been removed to this court upon appeal, yet the court below may allow a cross-appeal, sign a citation, and approve a bond within the two years prescribed. And so, when a cross-appeal appeal is allowed by a justice of this court, the petition and order of allowance must be filed in the court below in order to the due taking of the cross-appeal under the statute. As in this case the petition, order, and bond were not filed in the circuit court until after two years had elapsed from the date of the entry of the decree, the cross-appeal must be dismissed.

The amount due to Churchill, trustee, upon the notes and acceptances, does not appear to have been questioned, and, with interest from January 9, 1882, to the 2d day of September, 1885, reached the sum of $28,541.70. The court passed upon exceptions embracing the items of damages claimed by way of recoupment set forth in the commissioner's report, and allowed the sum of $7,454, which, with interest to September 2, 1885, made an aggregate of $9,412.20; and that amount, being deducted from the $28,541.70, left a balance of $19,129.50 in favor of the defendant Churchill, trustee, for which the decree was rendered. The dismissal of the cross-appeal dispenses with any inquiry into these allowances, so far as the cross-complainants are concerned.

By section 997 of the Revised Statutes, an assignment of errors is required to be annexed to and returned with a writ of error; and the rules, regulations, and restrictions are, as remarked before, the same as to appeals as in cases of writs of error. By the twenty-first rule of this court it is, among other things, provided that the brief of counsel for plaintiff in error or appellant pellant shall contain 'a specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged; and in cases brought up by appeal the specification shall state as particularly as may be in what the decree is alleged to be erroneous. * * * When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report, and the action of the court upon it. * * * When there is no assignment of errors as required by section 997 of the Revised Statutes, counsel will not be e ard except at the request of the court, and errors not specified according to this rule will be disregarded; but the court at its option may notice a plain error not assigned or specified. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion.' There is no assignment of errors annexed to the transcript of the record in this case, nor does the brief of counsel contain any specification of errors such as is required by our rule. We shall not in this instance decline to consider what we suppose to be the errors relied on, but we call attention to this disregard of the statute and the rule in the hope that nothing more is needed to prevent its...