National Bank v. Omaha — 96 U.S. 737

Majority — Waite C.J.

p. 737

National Bank v. Omaha.

Syllabus

1. Even though an appeal is asked'for in open court, if the security is not taken until after the term, a citation must be issued to bring in the parties, unless they voluntarily appear.

2. .The ruling in O’Reilly v. Edrington (supra, p. 724), that a.judge or justice cannot delegate to the clerk the power to approve the security upon writs of error and appeals, approved, and applied to this case.

Appeal from the Circuit Court of the United States for the District of Nebraska.

Mr. J. M. Woolworth, for the appellant.

No counsel appeared for the appellee.

delivered the opinion of the court.

The decree in this case was rendered Nov. 13,1874; and at the end appears the following entry: —

“Whereupon said complainant, by its solicitor; prays an appeal to the Supreme Court of the United States, which is allowed; and bend to be given on said appeal is fixed at $500.”

A bond was filed Sept. 30, 1875, which appears to have been

p. 738

approved by tbe clerk, and not by tbe judge. No citation bas been issued or served, and there is no appearance in this court by tbe appellees. ■

We- bave decided’ at tbe present term, in Sage v. Railroad Company (supra, p. 712), that, even though an appeal is asked fot in open court, if tbe security is not taken until after tbe term, “ a citation should be issued to bring in tbe parties, unless they voluntarily appear, for, until tbe security bas been accepted, tbe allowance of the appeal cannot be said to bave been perfected;.” and, in O’Reilly v. Edrington (supra, p. 724), that “ tbe security upon writs of error and appeals must be taken by tbe judge or justice. He cannot delegate this power to tbe clerk.”

Appeal dismissed.■