Seymour v. Freer — 72 U.S. 822

Majority

p. 822

Seymour v. Freer.

Syllabus

Where, through mistake or accident, no bond, or a'defective bond, has been filed, this court will not dismiss the appeal, — if it is in all other respecta quite regulaf, — except on failure to comply with ati order to give the proper security within such reasonable time as it may prescribe.

Appeal from the Circuit Court for Northern Illinois.

This was a.motion to dismiss an apppal because the bond for the prosecution of the appeal was not filed within ten days after the decree.'

It Rppeared that the decree in the Circuit Court was drawn and placed in the hands of the clerk on the 15th of November, 1866, upon an understanding by.the counsel, sanctioned by the court, that it was to be entered, wheh approved by the court, as of that day. It was retained for several days by the judge, who required a stipulation from counsel in respect to the receiver appointed by the decree, and was then returned to the clerk, and entered on the 20th as of-the 15th. The bond was filed on the 28th.

delivered the opinion of the court.

We think that for the purposes of appeal this decree must be regarded as having been passed on the 20th, and that the bond was filed in time.

Hut if this were otherwise, and through' mistake or accident no bond, or a defective bond, had been filed, this eourtwould not .dismiss the ap.pea.1, except on failure to comply with an order to give the proper security within such reasonable time as it might prescribe.^[1] What is essential to an

* Brobst v. Brobst, 2 Wallace, 96.

p. 823

appeal is allowance, citation to the appellees, or equivalent notice or- waiver, and the bringing up of the record at the next term of this court. Security for prosecution should be taken by the judge on signing the. citation; but if this duty be omitted or defectively performed, a remedy can be applied here on motion.

In the present case a bond, admitted, to be sufficient for costs of prosecution, whether given in time'to'make appeal operate as a supersedeas or not, -was filed in the court below before removal to this court.

The motion to dismiss the appeal must therefore be

Denied.