Haskins v. St. Louis S. E. Railway/Opinion of the Court

We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the fourteenth of June, 1879, and at the foot of the entry is the following: 'Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days.' A copy of what purports to be an appeal bond, filed on the third of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court, or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Section 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U.S. 726. If the appeal is allowed in open court the security may be taken by the court and no citation is necessary; but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co. 96 U.S. 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice.

The appeal is dismissed for want of jurisdiction.