Hudgins v. Kemp (59 U.S. 530)

THESE two cases were appeals from the circuit court of the United States for the eastern district of Virginia. Being exactly alike, it will only be necessary to state the first.

A motion was made to dismiss the first case upon the following grounds, and was argued by Mr. Robinson, and Mr. Pallon in support thereof, and opposed by Mr. Johnson and Mr. Lyons.

The counsel for the motion filed the following certificate:--

I, Philip Mayo, clerk of the United States court for the fourth circuit and eastern district of Virginia, do certify that, in a suit in chancery in the said court between Wyndham Kemp, assignee in bankruptcy of John L. Hudgins, a bankrupt plaintiff, and Elliott W. Hudgins and John L. Hudgins, defendants, a final decree was rendered on the twenty-seventh day of June 1855; that the term of the court at which the same was rendered, ended on the twenty-eighth day of that month; that afterwards in the vacation of the said court, to wit, on the 16th of October, 1855, there was filed in my office, a writing under the hand of R. B. Taney, judge of the said court, bearing date on the thirteenth of that month, whereby it was 'ordered that the appeal in this case, which was taken in open court when the decree was pronounced, be entered accordingly on the order book of the court of the last term, to wit: of May term, 1855;' that in view of this order, the clerk on its being so filed wrote on the order book of the court, at the foot of the decree of the 27th of June, 1855, the following words: 'And from the foregoing decree the defendants prayed an appeal, which was granted them on giving bond and security to be approved by the court in double the amount of said decree, conditioned for their prosecuting the said appeal;' and that at the time of filing the said vacation order of the judge, there was also filed in the clerk's office, bond and security approved by the said judge in double the amount of said decree, conditioned for their prosecuting the said appeal. Given under my hand this 21st day of April, 1856.

P. MAYO, Clerk.

And then made the following points for dismissal:--

I. It cannot take jurisdiction of the appeals as having been allowed by the court, when the record as it stood at the end of the term, and as it was then signed by the presiding judge, shows no allowance of such appeals. In Burch, & c. v. White, 3 Rand. 104, cited in 1 Rob. Pract. 642, (old edit.,) it appeared that at the preceding term the appeal was prayed and bond and security then given; but the clerk of the court had omitted to enter on the records thereof the appeal so granted. The supreme court of appeals of Virginia decided that this omission could not be remedied by an amendment of the record made after the term had ended; and the appeal was therefore dismissed. Though the appeal bond was filed with the clerk, it was considered there was nothing in the record to amend by. A fortiori, it must be so in these cases, when no appeal bond was given during the term; and there was nothing whatever to amend by.

II. If the appeal had been duly allowed, the appeal bond has not been properly given.

Under the act of congress of March 3, 1803, (2 Story, 905,) appeals are 'subject to the same rules, regulations, and restrictions as are prescribed in law in cases of writs of error.' One of the rules as to a writ of error is, that it 'shall be a supersedeas and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of.' 1 Story, 61, § 23; Wallen v. Williams, 7 Cranch, 278. Now it is well established that an appeal in chancery cannot operate as a supersedeas, unless the appeal be perfected by giving an appeal bond within the ten days. Adams, &c. v. Law, 16 How. 148. And it is clear that we are entitled to process to carry these decrees into effect. S.C.. 17 How. 417. But perhaps it may be said that in other cases-in cases where there is no supersedeas-the mode of taking the security, and the bond for perfecting it, are matters of discretion to be regulated by the court granting the appeal; and that when its order is complied with, the whole has relation back to the time when the appeal was prayed. The Dos Hermanos, 10 Wheat. 306. Still, if we are to take the regulation of the court granting the appeal from its order on the record book of the court, even as it now appears, since the alteration of the record, that order has not been complied with; for according to that order, the appeal was granted on giving bond and security, to be approved by the court, and the bond and security given have not been approved by the court in term, but only by the judge in vacation.

III. If the appeals could be allowed in vacation, and could in these cases be regarded as so allowed, still, the appeals would be defective for want of citation and notice. Ex parte Crenshaw, 15 Pet. 119; Villabolos v. United States, 6 How. 90; Hogan v. Ross, 9 Ib. 602.

The propriety of the rules above insisted on, is strikingly illustrated by what in fact took place in these cases; for here the assignee, immediately after the term was ended, procured copies of the decrees; there was nothing either in these copies or in the record itself to inform him of there being appeals, no such information was afterwards obtained by means of citation or notice, and he proceeded to make sale according to the decrees.

The counsel, in opposition to the motion to dismiss, filed the following certificates:--

I, P. Mayo, clerk of the United States court for the fourth circuit and eastern district of Virginia, hereby certify that in the case of Wyndnam Kemp, assignee in bankruptcy of John L. Hudgins, against Robert Hudgins, John L. Hudgins, Elliott W. Hudgins, and Albert G. Hudgins, lately decided in the said court, an appeal was granted the defendants from the decree entered against them on the 27th of June, 1855, and that their said appeal was entered among the minutes of the proceedings of that day, but was omitted to be entered in the order book, by the inadvertence of the clerk; but was subsequently entered therein, as of the date when entered in the minutes; by the order of Chief Justice Taney, to wit, Wednesday, June 27, 1855.