Ex parte in re Rhodes v. Steamship Galveston/Opinion of the Court

A motion has been made to docket and dismiss the case of Henry W. Rhodes, libellant, against the steamship Galveston, and John B. Crane, master, and Charles Morgan and others, respondents and claimants, in which it appears that a decree was rendered in the District Court of the United States for the District of Texas against the libellant, and from which decree he prayed an appeal.

The motion is made in behalf of the respondents and claimants under the forty-third rule of this court; and in support of the motion they produce the certificate under seal of the clerk of the District Court, stating that at the April term, 1850, a final decree was rendered in the above-mentioned case in favor of the respondents and claimants; and that the libellant prayed and obtained and appeal to this court. The certificate does not state on what day the decree was made.

The rule referred to entitles a party, in a case like the present, to have it docketed and dismissed, where the decree was rendered thirty days before the commencement of the term of this court, unless the appellant shall docket the case and file the record within the first six days of the term. The record has not yet been filed and the case docketed by the appellant. But in order to entitle the appellees to docket and dismiss, they must show by the certificate of the clerk that the decree was rendered thirty days before the present term. The certificate produced states only the term of the District Court at which it was rendered, and not the day. And it often happens that the term of a court continues by adjournments from time to time for several months. For aught that appears in this certificate, the April term, 1850, of the District Court may have continued until the meeting of this court; and we are not aware of any case that has been docketed and dismissed under this rule, unless the day of the judgment or decree was stated in the certificate. And as we have no evidence before us to show how long the term of the District Court continued, or on what day this decree was rendered, the motion to docket and dismiss is overruled.

On the motion of R. S.C.oxe, Esq., to docket and dismiss, under the forty-third rule of this court, the appeal in this case from the District Court of the United States for the District of Texas.

On consideration of this motion, it is now here ordered by the Court, that the said motion be, and the same is hereby, overruled.