The signing of a citation after the expiration of the term to
which an appeal taken with security was returnable, and after the
commencement of the following term, and without taking new
security, is in effect the granting of a new appeal returnable at
the next term of court thereafter.
An appeal docketed in this Court after a term ends and before
the next following term begins is docketed as of the next following
term.
An appeal bond having become inoperative by reason of failure to
docket the appeal at the next term of this Court, and a new appeal
having been granted without the filing of a new bond, on motion to
dismiss for want of filing an appeal bond,
held that the
motion should be granted unless appellant, before a day fixed by
the order, should file a bond with the clerk of this Court, with
sureties to the satisfaction of the Justice allotted to the
circuit.
Brown v. McConnell, ante, 124 U. S. 489,
followed.
Motion to dismiss. The case is stated in the opinion of the
Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The facts on which this motion rests are these:
The decree from which the appeal was taken was rendered November
7,
Page 124 U. S. 494
1884, and contained on its face the allowance of an appeal to
this Court. That appeal was returnable to October term, 1885, which
began October 12 of that year. It does not appear that any bond was
approved during the term at which the decree was rendered, but one
was approved October 10, 1885, which was before the beginning of
the return-term. A citation was signed November 2, 1885, after that
term began, requiring the appellee to appear in this Court on the
second Monday in October, 1886. This citation was served February
17, 1886, but the case was not docketed in this Court until June
11, 1886, which was after our term of 1885 ended, but before that
of 1886 began.
The bond approved October 10, 1885, must be deemed to have been
taken under the appeal allowed in open court, and, as that appeal
became inoperative by reason of the failure to docket it here
during the term of 1885, the only question we have now to determine
is whether the signing of the citation November 2, 1885, was in
effect the allowance of a new appeal, returnable at the term of
1886. We have just decided in
Brown v. McConnell, ante,
124 U. S. 489,
that it was, but as the bond which was executed October 10, 1885,
became inoperative by the failure to docket the first appeal in
time, we now
Order that this appeal be dismissed unless the appellant
shall, on or before the nineteenth day of March next, file with the
clerk of this Court a bond in the penal sum of $500 conditioned
according to law for the purposes of the appeal, with sureties to
the satisfaction of the Justice of this Court allotted to the Fifth
Circuit.
