DODGE and others v. KNOWLES.

114 U.S. 430 (5 S.Ct. 1108, 29 L.Ed. 144)

DODGE and others v. KNOWLES.

Decided: May 4, 1885

Chas. M. Matthews, for motion.

J Holdsworth Gordon, in opposition.

Pages 431-435 intentionally left blank

WAITE, C. J.

The facts on which this motion rests are these:

The final decree in the cause was rendered February 23, 1881. At the foot of the decree, and as part of the original entry, is the following:

'From this decree the defendants pray

The final decree in the cause was rendered February 23, 1881. At the foot of the decree, and as part of the original entry, is the following:

'From this decree the defendant pray an appeal to the supreme court of the United States, which appeal is hereby allowed.

'By order of the court.

D. K. CARTTER, Ch'f Just.' Security upon the appeal was not taken until November, 5, 1881, which was after the term when the decree was rendered. No citation was served on the appellee, but the appeal was duly docketed in this court November 11, 1881. The cause was called in its regular order for the first time January 9, 1885, and on that day submitted on printed brief by the counsel for the appellants, no one appearing for the appellee. On the seventeenth of January, the court, of its own motion, ordered 'that this cause be reargued, either orally or on printed briefs, to be filed on or before the first Monday in March next.' The purpose of this order was to allow the appellee an opportunity to be heard. A copy was served on him personally on or about January 21st, and he wrote the clerk, under date of February 28th, as follows: 'Having been advised by counsel that no appeal has ever been perfected to the supreme court of the United States in the case of which you write, I would inform you that I respectfully decline to authorize an appearance to be entered in that court for me in that cause for any purpose whatever.'

On March 2d the appellants again submitted the cause on a printed brief, no one appearing for the appellee. The case was taken under advisement and held until April 13th, when the decree of the court below was reversed, and an entry made to that effect. On the twentieth of April, the appellee came, and entering an appearance only for the purpose of his motion, moved to set aside and annul the judgment of reversal, and to dismiss the appeal, (1) because no citation has been issued or served; and (2) because the value of the matter in dispute did not exceed $2,500. As to the last ground of the motion, it is sufficient to say that the decree appealed from was for more than $2,500, and it charged the property of the appellants with the full amount. Upon the face of the record, therefore, our jurisdiction is complete. Such being the case, we are not willing to consider extrinsic evidence at this late day for the purpose of ascertaining whether the actual value of the property from which the collection must be made is sufficient to pay the whole debt or not.

The allowance of the appeal by the court while in session and acting judicially at the term in which the decree was rendered, constituted a valid appeal, of which the appellee was bound in law to take notice. The docketing of the cause in time perfected the jurisdiction of this court. The giving of the bond was not essential to the taking, though it was to the due prosecution, of the appeal. It was furnished and accepted in this case before the cause was docketed here. Had this not been done we would have given the appellants leave to supply the omission before dismissing the appeal. All this was decided, on full consideration, in Peugh v. Davis, 110 U. S. 227; S. C. 4 SUP. CT. REP. 17.

It has also been decided that if an appeal was allowed in open court during the term in which the decree was rendered, a citation was required, as matter of procedure, if the security was not furnished until after the term; but in Railroad Co. v. Blair, 100 U. S. 662, it was said: 'Still an appeal, otherwise regular, would not probably be dismissed absolutely for want of a citation, if it appeared, by clear and unmistakable evidence, outside of the record, that the allowance w § made in open court at the proper term, and that the appellee had actual notice of what had been done.'

The citation is intended as notice to the appellee that an appeal has been taken and will be duly prosecuted. No special form is prescribed. The purpose is notice, so that the appellee may appear and be heard. 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 an 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. Here, before the cause came on for final hearing, notice was given the appellee, by order of the court, that the appeal taken in open court was being prosecuted, and that a reargument at an appointed time was desired. In response to this notice the appellee declined to appear, not because he had not been served with a citation, but because no appeal had been perfected. Had he complained of a want of citation, the omission might have been supplied if, on consideration, it should have been deemed necessary. But the order which was served on him to appear and argue the cause if he saw fit was of itself the legal equivalent of a citation for all the purposes of this appeal.

The motions are denied.

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