Fowler v. Hamill/Opinion of the Court

Fowler, deceased, claimed as having by assignment become the

owner of all the interest of one McClosky in the subject-

[550]

-matter of this suit, and in certain letters patent, in respect to

which the bill herein was filed by McClosky against Hamill. A

decree dismissing the bill was entered in the circuit court on

April 21, 1883. Judgment for costs was rendered June 16, 1883. The

record does not show the judgment of June 16th, but the petition for appeal states that 'on the 21st day of April, 1883, a decree was made in said suit and duly entered, whereby it was ordered, adjudged, and decreed that the said bill of complaint be dismissed, and that the said McClosky pay to the above-named respondent the costs of said suit, to be taxed, and thereupon the said costs were taxed; and on the 16th day of June, 1883, the final decree was entered in said cause, including judgment for the amount of said costs as taxed, and execution was duly issued for said costs,' etc. The application for the allowance of an appeal was dated June 15, and the appeal allowed June 16, 1885. This citation was signed June 16, and the appeal-bond executed June 17, 1885. The petition for and allowance of appeal and the citation were filed in the circuit court June 19, and the appeal-bond June 17, 1885. The final decree was that of April 21, 1883, and the appeal was not taken in time. Rev. St. § 1008; Silsby v. Foote, 20 How. 290. And, had the judgment for costs of June 16, 1883, been the final decree, still the result must be the same, as the papers on appeal were not filed in the circuit court within two years thereafter. Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 259, 9 Sup. Ct. Rep. 107. The appeal must therefore be dismissed.