Fowler v. Hamill, 139 U.S. 549 (1891)

U.S. Supreme Court

Fowler v. Hamill, 139 U.S. 549 (1891) Fowler v. Hamill

No. 4

Argued and submitted March 31, 1891

Decided April 13, 1891

139 U.S. 549

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

A decree dismissing the bill was entered April 21, 1883. Judgment for costs was rendered June 16, 1883. The appeal was allowed June 16, 1885, on an application made June 15, 1885. Held that the decree of April 21 was the final decree, but that even if the judgment of June 16 was the final decree, the allowance was too late to enable this Court to take jurisdiction.

The case is stated in the opinion.

MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.

Fowler, deceased, claimed as having by assignment become the owner of all the interest of one McClosky in the subject

Page 139 U. S. 550

matter of this suit, and in certain letters patent, in respect to which the bill herein was filed by McClosky against Hamill. A decree dismissing the bill was entered in the circuit court on April 21, 1883. Judgment for costs was rendered June 16, 1883. The record does not show the judgment of June 16th, but the petition for appeal states that

"on the 21st day of April, 1883, a decree was made in said suit and duly entered, whereby it was ordered, adjudged, and decreed that the said bill of complaint be dismissed, and that the said McClosky pay to the above-named respondent the costs of said suit, to be taxed, and thereupon the said costs were taxed, and on the 16th day of June, 1883, the final decree was entered in said cause, including judgment for the amount of said costs as taxed, and execution was duly issued for said costs,"

etc.

The application for the allowance of an appeal was dated June 15, and the appeal allowed June 16, 1885. This citation was signed June 16, and the appeal bond executed June 17, 1885. The petition for and allowance of appeal and the citation were filed in the circuit court June 19, and the appeal bond June 17, 1885.

The final decree was that of April 21, 1883, and the appeal was not taken in time. Rev.Stat. § 1008; Silsby v. Foote, 20 How. 290. And, had the judgment for costs of June 16, 1883, been the final decree, still the result must be the same, as the papers on appeal were not filed in the circuit court within two years thereafter. Credit Co. v. Arkansas Cent. Railway Co., 128 U. S. 259. The appeal must therefore be

Dismissed.