Gunn v. Black, 347.

Decision Date29 January 1894
Docket Number347.
Citation60 F. 159
PartiesGUNN v. BLACK et al.
CourtU.S. Court of Appeals — Eighth Circuit

George Gillham, for appellant.

John J Hornor and M. L. Stephenson, (Jacob Trieber, on the brief,) for appellees.

Before SANBORN, Circuit Judge, and THAYER, District Judge.

SANBORN Circuit Judge.

For convenience, the appellant is termed the complainant, and the appellees the defendants, here, as in the preceding opinion in cases No. 277 and No. 278, between the same parties. 60 F 151.

After both the complainant and the defendants had appealed to this court from the decree made December 14, 1892, (the appeals from which decree have just been decided,) and after the complainant had given an appeal bond, which had been approved by the court, and which operated as a supersedeas per se, the circuit court, on the motion of the defendants, made an order for the purpose of executing the decree below, to the effect that unless the complainant should select by May 1, 1893 from certain lands allotted to the defendants, those which he would accept, at their appraised value, in satisfaction of the amount of money decreed to be due to him from the defendants, a commissioner appointed by the court should make the selection, should execute deeds of the lands selected to the parties in accordance with the order, and report his proceedings to the court at its next succeeding term. The appeal now before us is from this order.

The order was undoubtedly erroneous. Both parties had appealed from the decree. That decree was in the complainant's favor, so that it is difficult to see how the defendants could suffer any damages through the complainant's appeal. Moreover, his appeal bond, which was approved by the judge, was conditioned that he should prosecute his appeal to effect, and answer all damages and costs if he failed to make good his plea; and a bond so conditioned, when the appeal is perfected in time, as this was, operates as a supersedeas per se, and suspends the power of the court below to proceed further in the case by executing its decree. Rev. St. §§ 1000, 1007, 1012; Supp. Rev. St. p. 904, § 11; Gay v. Parpart, 101 U.S. 391. Upon a proper application presenting these facts, a writ of supersedeas might have been issued by this court, staying the proceedings of the court below until the decision of the appeals from the decree. Supp. Rev. St. p. 904, § 11; Hardeman v. Anderson, 4 How. 640; Adams v. Law, 16 How. 144; Ex parte Milwaukee R. Co. 5 Wall. 189.

But the act establishing this court gives it no jurisdiction to review such an order as that now before us upon an appeal. That act provides 'that the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act.' 26 Stat. c. 517, § 6; Supp. Rev. St. p. 903, § 6.

Under this statute, a final judgment or decree which determines all the matters in controversy in the suit, or a judgment or decree that finally determines the rights of some of the parties to the litigation who are claimed to be separately, not jointly, liable with others against whom the litigation continues, (Hill v. Railroad Co., 140 U.S. 52, 11 S.Ct. 690,) or a decree which determines a collateral matter distinct from the general subject to litigation, and finally settles that controversy, (Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 224, 10 S.Ct. 736,) is subject to review in this court by writ of error or appeal, (Forgay v. Conrad, 6 How. 201, 204; Bronson v. Railroad Co., 2 Black, 524, 529; Thomson v. Dear, 7 Wall. 342, 345; Trustees v. Greenough, 105 U.S. 527; Williams v. Morgan, 111 U.S. 684, 689, 4 S.Ct. 638; Central Trust Co. v. Hiawassee Co., 2 U.S. App. 1, 1 C. C. A. 116, 48 F. 850; Grant v. Railroad Co., 2 U.S. App. 182, 1 C. C. A. 681, 50 F. 795; Potter v. Beal, 5 U.S. App. 49, 2 C. C. A. 60, 50 F. 860.)

But with the exception of orders granting or continuing injunctions, this statute...

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3 cases
  • United States v. Broude
    • United States
    • U.S. District Court — District of Minnesota
    • February 6, 1924
    ...745, 34 L.Ed. 153, and McGourkey v. Toledo & Ohio Central Railway Co., 146 U.S. 536, 13 Sup.Ct. 170, 36 L.Ed. 1079. In the case of Gunn v. Black, supra, the order involved was one for the purpose of executing a decree after an appeal from such decree had been perfected, but reserving final ......
  • Jackson v. Jackson
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 4, 1909
    ... ... 690, 35 L.Ed. 331; Standley et al. v ... Roberts et al., 59 F. 836, 8 C.C.A. 305; Gunn v ... Black et al., 60 F. 159, 8 C.C.A. 542; Rust v ... Waterworks Co., 70 F. 129, 17 C.C.A ... ...
  • Gunn v. Black, 277
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 29, 1894

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