John Buckingham and Mark Buckingham, Appellants v. Nathaniel Lean, Assignee In Bankruptcy of John Mahard, Jr

• Decision Date: 01 December 1851
• Citation: 14 L.Ed. 91,13 How. 150,54 U.S. 150
• Parties: JOHN S. BUCKINGHAM AND MARK BUCKINGHAM, APPELLANTS, v. NATHANIEL C. McLEAN, ASSIGNEE IN BANKRUPTCY OF JOHN MAHARD, JR
• Court: U.S. Supreme Court

54 U.S. 150

13 How. 150

14 L.Ed. 91

JOHN S. BUCKINGHAM AND MARK BUCKINGHAM, APPELLANTS,v.NATHANIEL C. McLEAN, ASSIGNEE IN BANKRUPTCY OF

JOHN MAHARD, JR.

December Term, 1851

BEFORE this case was reached upon the docket, a motion was made to dismiss it upon the ground that the appellee had not been served with a citation, and also upon another ground, which is stated in the following opinion of the court as pronounced by Mr. Justice McLean.

Mr. Justice McLEAN.

This is an appeal from the Circuit Court of the Ohio District, and a motion is made to dismiss it on two grounds.

1.Because no citation has been issued.

2.'Because the appeal is from the decree of 1848 and interlocutory decrees, whereas all the matters contested by the appellants were finally adjudicated and decreed at the November term, 1846, from which decree an appeal was taken which was dismissed by this court, and no appeal has been since taken.'

At November term, 1846, a decree was entered against the appellants.In January term, 1847, an appeal was prayed by them from that decree, which was granted, and bond was given.But the appellants failing to file the record and docket the cause in this court, as required by the rules, it was, on motion of the appellee's counsel docketed and dismissed at December term, 1847.At the same term a motion was made to reinstate the cause upon the docket, which motion was overruled.

Afterward, at October term, 1849, the appellants prayed an appeal from the final decree made at the November term, 1848, which was granted, and that is the appeal which is now pending.

It seems that no notice of this appeal has been served on the appellee, and on that ground the motion to dismiss is made.A general appearance was entered by the counsel for the appellee at December term, 1850, but the motion to dismiss was not filed until February, 1852.In the case of McDonough v. Millaudon, 3...