Yeaton v. Lenox (33 U.S. 123)

ON appeal from the circuit court of the United States for the county of Alexandria, in the district of Columbia.

At an early day in the term, Mr Coxe, as counsel for the appellees, moved to dismiss the case, as he alleged it had been already twice discussed by the court, 7 Peters 220.

Mr Swann and Mr Neale opposed the motion.

The case was dismissed at a prior term of the court, for want of an appeal bond. There had been but one appeal, prior to the present, which was entered in 1833. The counsel for the appellants are now prepared to proceed with the argument.

It is not admitted that a previous irregular appeal, prevents another, unless the five years allowed by law for an appeal have expired.

The record of the former appeal was not filed in the time required by the rules of the court; and after it was dismissed, the appellants went into the circuit court of the county of Alexandria, and prayed for this appeal, which was granted; and now all the requisites of the law and of the rules of court have been fully complied with. While it is admitted, that after an appeal the appellees, on the omission of the appellants to do so, may file the record, have it opened, and pray to have it dismissed and thus finally disposed of, and precluding a second appeal; yet this has not been done, and the action of the court in the case, when formerly before it, has not such effect.

The court refused the motion. A party may, after an appeal has been discussed for informality, if within five years, bring up the case again.

The case came on afterwards for argument: Mr Swann and Mr Neale, for the appellants; and Mr Coxe, for the appellees.

The court gave no opinion on the questions of law submitted in the argument, but dismissed the case for informality in the institution of the suit. The arguments of counsel are therefore omitted.

Mr Chief Justice MARSHALL delivered the opinion of the Court.