Bigler v. Waller (79 U.S. 142)

MOTION to dismiss for want of jurisdiction an appeal from the Circuit Court for the District of Virginia; the case being thus:

James Bigler filed a bill in the court below against William Waller and Robert Saunders. Pending the suit, Saunders died, and his death being suggested, a scire facias to revive the cause was issued, and returned executed on one Harrell, his administrator. The death of the defendant, Waller, was also afterwards suggested, and one W. G. Waller, administrator on his estate, moved for leave to appear and defend the suit. The court, accordingly, on the 3d of June, 1870, ordered that the suit should proceed against the said Harrell, and the said W. G. Waller, administrators, as already mentioned. In this state of the cause it was heard, and a decree given that Bigler, the complainant, pay to the said W. G. Waller, administrator of William Waller, a sum of money specified, and to the several defendants thier costs. From that decree Bigler took an appeal to this court; the appeal being taken in assumed conformity to the second section of the Judiciary Act, which gives an appeal from the Circuit Court to this court, 'the citation being signed by a judge, &c., and the adverse party having at least thirty days' notice.' And which further says:

'And every justice of judge signing a citation, &c., shall take good and sufficient security that the plaintiff in error shall prosecute his writ.'

By the already mentioned Judiciary or other acts of Congress, the appeal, if taken within a time limited (security being given in like manner), operates as a supersedeas. Prefixed to the appeal bond which Bigler, the appellant, gave in this case, were these words: 'SUPREME COURT OF THE UNITED STATES.

James Bigler

v.

William Waller and Robert Saunders.

Bond on appeal.'

The bond itself purported to be 'given to the above-named William Waller and Robert Saunders in the sum of $20,000,' and was with a condition, reciting that 'the above-named James Bigler had prosecuted an appeal to the Supreme Court of the United States to reverse the decree rendered in the above entitled suit by the Supreme Court of the United States.' The condition of the bond was, that 'the above-named James Bigler shall prosecute his said appeal to effect, and answer all damages and costs if he shall fail to make good his plea.'

The citation was directed 'to William Waller and Robert Saunders,' and imported that they were to appear pursuant to an appeal, 'wherein James Bigler is plaintiff and you are defendants.' On the citation was this indorsement:

'I hereby acknowledge service of the within citation.

'JAMES ALFRED JONES,

'Counsel for the defendants in this cause in the Circuit Court of the United States for the District of Virginia.'

In this court the appearance had been special.

Mr. Conway Robinson, in support of the motion:

1. There has been no proper citation to the 'adverse party.' It was directed 'to William Waller and Robert Saunders,' and therefore was without effect; for both of the parties cited were dead, and appeared by the record to be dead before the decree. Nor has there been any waiver; the indorsement by Mr. Jones, who had been counsel for those who were defendants in the Circuit Court, not being intended as waiver, nor amounting to such; and there being no waiver by the counsel in the Supreme Court, where the appearance was, but a special one.

2. Neither had 'good and sufficient security' been taken, for the instrument was void by the common law, since both the persons named as obligees were dead, and appeared by the record to be dead before the decree.

After Catlett v. Brodie, it was in one case said that 'the mode of taking the security, and the time of perfecting it, are matters of discretion to be regulated by the court granting the appeal.' But subsequently where it appeared 'that no appeal bond was taken or approved by the judge signing the citation,' the appeal was dismissed. Other cases support this conclusion, where the appeal operates as a supersedeas. In 1853, the court referring to the language above quoted from the Dos Hermanos said:

'This cannot apply to a case where the appeal operates as a supersedeas. It must be brought strictly within the provisions of the law.'

3. Even if the appeal be not dismissed, it should not be allowed to operate as a supersedeas when there has not been taken 'good and sufficient security' by a proper bond. Such terms should be imposed on the appellant as under the circumstances appear proper. There should at least be an order for the dismissal of the appeal, unless within such time as the court may prescribe there be given a proper bond with good and sufficient security.

Mr. W. F. Mattingly, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.