Hunt v. Blackburn (131 U.S. 403)

The counsel for appellees having undertaken to appear for the heirs and representatives of the original appellee, deceased, and having filed in the office of the clerk of this court a waiver of publication, and having failed to appear, and the cause having been heard and having proceeded to final hearing, (128 U.S. 464;) Held, that the decree be made absolute against the heirs and representatives of the deceased appellee.

The previous proceedings in this case are reported in 127 U.S. 774; and 128 U.S. 464. On the 22d January, 1889, the following motion was made in the cause:

[p404] The appellant, by his counsel, moves the court to enter the decree in this cause, reversing the decree below; on the ground that the waiver of publication is equivalent to the publication; and that the undertaking of counsel to appear, is an appearance, or will justify the clerk in entering the appearance; and in this case, an order will follow for publication, to show cause why the appellant should not have the decree certified—or otherwise why execution should not issue. It is submitted, however, that if this latter is the proper course, the ''sci. fa.'' should issue from the court below after remand.

If this be held by the court inadmissible, he then moves in the alternative, that an order be entered for publication, in such form as the court may order, and submits the following for the consideration of the court, as a proper order:

This case having been heard on the undertaking of counsel for appellees to appear for the heirs and representatives of the original appellee, and upon a waiver of publication by the said counsel, filed in this court; and the said counsel having failed to appear, though requested by appellant's counsel. It is on motion of appellant's counsel ordered that publication be made in the Eastern District of Arkansas, weekly, in some newspaper published in said district, for four successive weeks; the first publication not to be later than the first day of February next, requiring Belle Buck, as administratrix of S. S. Buck, appellee, and in her own right, Willie Buck and Eddie Blackburn, children and heirs at law of Sallie S. Buck, appellee, and all other heirs or representatives of said Sallie S. Buck, to appear before this court, on or before the first Monday in April, 1889, and show cause, if any they have, why a decree shall not be entered in this cause, reversing the decree in the court below, and remanding the said cause, with directions to enter such decree as this court may order.

[p405] Mr. J. B. Heiskell, for the motion, cited Lorymer v. Hollister, Strange, 693; 1 Tidd's Practice, 241, 1163; Green v. Watkins, 6 Wheat. 260; Wicket v. Cremer, 1 Ld. Raym. 439; State v. McLean, 8 Heiskell, 289.