Richardson v. Green

delivered the opinion of the court.

These are five appeals taken in a suit in equity brought by Ashbel Green and William Bond, trustees, against the Chicago, Saginaw and Canada Railroad Company, in the Circuit Court of the United States for the Western District of Michigan, for the foreclosure of a mortgage executed to the .plaintiffs upon the railroad of that company! The mortgage was given to the plaintiffs, as trustees, to secure 5500 bonds, of $1000 each, issued by the company, and payable to the plaintiffs or bearer.

A decree was made, on June 30,1882, directing a foreclosure and sale, and referring it to a master to determine the priority of those who claimed to be creditors of the company. On the 6th of November,. ,1882, the master filed his report, in which he divided the • debts and bonds proved before him into four classes. In class A he placed the debts which had a priority over the. bonds. The creditors in class A were Thomas M.

After a hearing on the report of the master, and exceptions thereto, the court, on the 3d of May, 1883, made a decree providing for the distribution of the proceeds of the sale of the mortgaged property which had taken place. After directing the payment of certain expenses and of receiver’s certificates, it directed the payment pro rata, from the fund remaining, of certain specified bonds as a third class, no greater sum to be paid, where the same were held as security, than sufficient to satisfy the indebtedness for which they were held. In this class the decree named Sickles and Stevens, as owners, for the number of bonds and the amounts severally before mentioned ; and Richardson and his assignee, Henry Day, for the debt before mentioned, with the lien on 200 bonds, amounting to the sum before mentioned. The decree then put into a fourth class the debts, above mentioned, to Nelson and Soule, and to Nelson, to be paid pro rata from any surplus which should then remain.

On the 12th of July, 1883, Sickles and Stevens were permitted, by an order of the court, to prosecute in their own names an appeal to this court from the decree of May 3,1883; and by a like order, made on the same day, Richardson and Day were allowed to appeal to this court from the same decree. The appeal bond of Sickles and Stevens was filed in the Circuit Court on September 6, 1883, and that of Richardson and Day on August 14, 1883.

On the 6th of August, 1883, Sickles and Stevens filed in the

On a hearing of the matter, the court made an order, on the ■1st of September, 1883, adjudging that the master had made an erroneous computation-of the interest in the case of bonds held by divers claimants as collateral security, in that he had allowed such claimants all coupons appearing with and attached to the bonds, without regard to the date when they were delivered to the holders, instead of computing interest upon them ■only from the date of their delivery; and referring it to the clerk of the court,to make a computation of the interest on the bonds, from the date of their delivery to the several persons who.held them as collateral security. The clerk reported such computation, and stated the amount of the 200 bonds held By Benjamin Richardson, as collateral security, to be $330,725, instead of, as before, $374,904. It also appeared that Richardson and Day had been .overpaid $2173.91; and that the Wrought Iron. Bridge Company had been overpaid $183.60.

, On September 11,1883, Nelson and' Soule were allowed an appeal, from the decree of May 3, 1883; and on that day Tmomas M. Nelson was also allowed an appeal from the same decree. An appeal bond-on each of these two appeals was filed in the- Circuit Court on October 15, 1883.

■ On the 8th of October, 1883, the court, on a further hearing, entered a decree which recited that the cause “ came on to be. reheard; ” and. also recited the filing of the petition by Sickles and Stevens for .a rehearing, and the making of the reference to the clerk and his report, and stated that it appeared “to

On the 17th of November, 1883, Richardson and Day were allowed an appeal from the decree of October 8, 1883. The appeal bond on that appeal was filed in the Circuit Court, November'28, 1883.

The appeal of Richardson and Day from the decree óf May 3; 1883, and their appeal from the decree Of October 8, 1883, are together known as No. 181. There is no other appeal but theirs, from the decree of October 8, 1883. The appeal, of Nelson and Soule from the decree of May 3, 1883, is No. 947

Motions are now made,- in the four cases, by John Bower & Co.,- and John F. Betz, to dismiss the two appeals in No. 181, and the other three appeals, on the grounds, that the transcript of the record' was not filed, and the cause ■ was not docketed, in- this court at the term thereof next after the time when the appeals respectively were prayed and allowed; and that no citations were issued oh any of the appeals. A motion is also made by T. W. Ferry, Hodgden, Elwell, Nims, and E. P. Ferry, to dismiss the four appeals from the decree of May 3, 1883, fojr want of jurisdiction, and also for want of due prosecution, because they were not lodged, or filed, or docketed, iti. this court during the term next succeeding the date of their allowance; and to .dismiss the appeal, in No. 181, from the decree of October 8, 1883, for want of jurisdiction, because the amount involved is less than $5000; and to dismiss the appeals in Nos. 947 and 1027, for want of citations; and to dismiss all five of the, appeals, because the appellees are not described in them-with certainty.-

/ As to Nos. 947, 1027 and 1074, the appeal in each is from the decree of May 3, 1883. In Nos. 947 and 1027, the appeals were allowed by an order of court, made in open court, on the 11th of September,-1883-; and in No. 1074, by an order of' <jourt, made in open court, on the 12th of July, 1883. In No. 947, the transcript of the record was filed, and the case .docketed, in this court, January 26, 1888; in No. 1027, June 26,1888; and in No. 1074, August 30, 1888. The term of this court next ensuing the allowance of the several appeals in Nos. 947, 1027 and 1074, from the decree of May 3, 1883, was the October~Term, ,1883. That term commenced on" the 8th of Ocfobér,.1883, and ended on. the 5th of May, 1884. The transcript of the'-record filed in all five of the appeals is certified by the clerk of the Circuit Court by a certificate bearing date October 4,1884. The same transcript of the' record is filed in all of the appeals. The transcript left the office of the clerk of the Circuit Court on October 6, 1884 and was sent by express, and reached the clerk of this court on October 10, 1884;

The rule being well settled that this court will not entertain an appeal where the transcript of the record is not filed in this court at the term next succeeding the taking of the appeal, ' Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258 , 259, and cases there cited, unless a recognized satisfactory excuse for the laches is made, it is sought in these cases to show such excuse by the following facts: In October, 1883, the appellants Richardson and Day as one party, Sickles and Stevens as one party, and Nelson and Soule and Thomas M. Nelson as one party, gave to the clerk of the Circuit Court a joint verbal order to make a transcript of the record without unnecessary delay, and forward it to the clerk of' this court, the three parties to pay to the former clerk the fees therefor pro rata, according to the amounts of their respective claims. After such, order to the clerk, the appeal of Richardson and Day from the decree of October 8, 1883, was taken. The clerk did not know that each appeal was a separate matter, but believed that all the appeals made but one case, and that, if the record should reach this court in time for any one appeal, it would bring up the case as a whole, with all the appeals; and he. understood and believed, while he was copying the record, that if the transcript should arrive'at the office of the "clerk of this court on or before October 15, 1884, it would be - in ample time to make all of the appeals valid, on the filing and docketing of the transcript. The clerk prepared the transcript as soon as he could, having regard to the other duties of his office and to the size of the record, (which makes 1235. printed pages, as printed here). He did not complete the-making of the transcript until about June 24, 1884, and forwarded it by express to the clerk of this court on October 6, 1884. These facts are supported by an affidavit of the clerk, .and by one of the solicitor for Nelson and Soule, to the same effect.

But the.jappeal in No. 181, of Richardson and Day, from the decree of October 8, 1883, was allowed bn November 17,1883, after the commencement of the October Term, 1883, of this court. It was, therefore, returnable to the October Term, 1884, of this court. The transcript, as before stated, was put into the hands of the clerk of this court, in his office,’ on the 10th of October, 1884. • The counsel for Day and Richardson took no further step in the matter until September 25, 1885, when he wrote to the clerk of this court, desiring his appearance to be entered for them. After some further correspondence, the counsel was informed by the clerk that, although the latter had received the record in October, 1884, the appeals had not been docketed, because the rule as to a deposit for costs (Rule 10) and that as to the entry of appearance (Rule 9) had not .been complied with. On a compliance with such rules, and on the 26th of October, 1885, the case was docketed, and an appearance for Richardson and Day was entered.

The principle applicable to such a state of facts is that established by the decision in Edwards v. United States, 102 U. S. 575 . In that case, a writ of error was issued, returnable at October Term, 1877. A.transcript of the record was lodged in the office of the clerk of this court in September, 1877, but by an oversight of the-counsel for the plaintiff in error no fee bond was given, and the . cause was not docketed during October Term, 1877. In. September, 1878, an acceptable fee bond was given, and the causo was formally docketed. A motion was made, at October Term, 1880, to dismiss the writ of error. This

In the present case, although the transcript of the record in No. 181 was filed and the case was docketed on October 26, 1885, no motion to dismiss was made until the present term; and, under the foregoing views, we a,re of opinion that the appeal of Pichardson' and Day from the decree of October 8, 1883, cannot be dismissed on the ground that the case was not actually docketed during October term, 1884.

One ground urged for dismissing the appeal of Pichardson and Day from the decree of October 8, 1883, is that, although that appeal was allowed by an order of court, made in open court on the 17th of November, 1883, at the same term at which the decree of October 8, 1883, was entered, yet the bond given to perfect such appeal was approved by the district judge on November 28,1883, apparently out of court, although filed in the court on that day -; and that, under these circumstances, a citation to the appellees was necessary, and none appears ever to have been issued.

As the appeal in question was allowed in open court, during

But, as to a citation, this case falls within the ruling in Dodge v. Knowles, 114 U. S. 430 , 438, where it is said: “ The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of ah appeal.'. Security is only for the due prosecution of the appeal. The citation, if security is taken out of court, or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal allowed in open court, and at the proper term, will, never be granted until an opportunity to give the requisite notice has been furnished; and this, whether the motion was made after the expiration of. two years from the rendition of the decree or before.”

In Hewitt v. Filbert, (supra,) it is said (p. 144): “ The allowance-by the court in session 'before the end .of the term at which the decree was' rendered, and -when both parties are either actually or constructively present, is in th¿ nature of an adjudication of appeal, which, if- docketed here in time, gives this court jurisdiction of the subject matter of the appeal, with power to make all such orders, consistent with the practice of courts of equity, as may be appropriate and necessary for the furtherance of justice.”

But the issuing of a citation may be waived by the appeL

Under these circumstances, a citation will be issued by this court, on the appeal in No. 181 by Richardson and Day from the decree of October 8, 1883, to the appellees in that appeal who have not entered here a general appearance'in No. 181, returnable at the next term of this court, unless the issuing of such'" citation shall be duly waived on the part' of such appellees.

It is also urged, , in the motion made by Thoina's W. Ferry and others to dismiss the appeal in Nó. 181 from the decree of October 8, 1883, that th's court has no jurisdiction of it, because the amount involved is not more .than $5000. The ground urged is, that the amount involved, so far as that appeal by Richardson and Day is concerned, is only $2173.91, which is the amount that Day, as assignee of Richardson, was directed to pay into court as having been overpaid on his claim.

It appears by the master’s. report that he disallowed the claim of Richardson as pledgee of purchaser of 400 bonds other than the 200 bonds the claim to which was allowéd to Richardson. The amount of money involved in the claim of Richardson and Day to these 400 bonds -largely exceeds the sum of $5000. ' This claim' is fairly brought up by their appeal from the decree of October 8, 1883, because that decree contains an express provision “that the decree of May 3; 1883, entered herein, shall stand ratified and confirmed, except as the same' is changed and modified by this decree.”

.Moreover, the Circuit Court, by reason of the petition of Sickles and Stevens for. a rehearing, and by reason of the rehearing which was had, did not lose its hold upon the fund to be distributed, nor part with its control of the cause, until

These provisions save the appeal of Richardson and Day-from the decree of October 8, 1883, as to amount, and enable them to have adjudicated by this court, on the hearing of that appeal, at least their claim in respect of the 400 bonds not alio,wed to them.

It is also objected, on the motion to dismiss made by Thomas W. Ferry and others, that, in the order of November 17,1883, allowing an appeal to Richardson and Day from the decree of October 8, 1883, the appellees are not named, but it is stated only that “the other parties of said cause, original and, intervening, (as appearing in the said final decree,)” are “appellees.” But the bond on such appeal, filed November 28, 1883, is given to the clerk of the Circuit Court for the use and benefit of twenty-five appellees, naming them, and among them are by name the five appellees by whom the motion on that ground is made. "We think the objection is not a good one.

It results from these views that the appeals in No. 947, No. 1027 a/nd No. 1074 must be dismissed; that the appeal i/h No. V&lfrom the decree of May 3,1883, must be dismissed/ ana that the motion to dismiss the appeal of Richardson and Day, in No. lSl,from the decree of October 8, 1883, must be granted, unless the appellants therein shall procure to be issued and served on the appellees therein a citation from this court, in the terms before set forth, returnable at the next term thereof, provided the issuing and service of such citation shall not be duly waived j and it is ordered that such citation shall issue, if a request therefor shall be filed with the cleric.

As Richardson has died since the day these motions' were a/rgued, the order to be made will be entered nunc pro tunc, as of that day, February 4, 1889.