DAVIES
v.
CORBIN & ANOTHER; GAINES V. CORBIN & ANOTHER
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Supreme Court addressed whether cases brought by writ of error could be dismissed for failure to provide required security under federal law. The Court held that timely provision of a supersedeas bond before the hearing on a motion to dismiss cured any defect, and that early docketing by the opposing party did not prevent the plaintiff in error from taking necessary steps to perfect the writ while it remained in effect. The Court also reaffirmed its requirement that a motion to affirm could not be entertained unless there appeared some colorable basis for dismissal, denying both the motions to dismiss and the accompanying motions to affirm in both cases.
© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Mr. Chief J ustice Waite delivered the opinion of the court.
This is the second time a motion has been made to dismiss the case of Davies v. Corbin. The ground of the present-motion is that the security required by § 1000 Rev. Stát. has never been given. Against this it is shown that a supersedeas bond was accepted by the judge who signed the citation on the 8th of April, 1884. The judgment brought under review by the. writ of error was rendered on the 11th of February, 1884. The writ of error was sued out and served on the 7th of March, in the same year, and the citation was also signed and served on that day. The cause was duly docketed in this court by the defendant in error on the 22d of March, in advance of the return day of the writ. On the same day the defendant in error filed his motion to dismiss for other reasons than that now relied on. The plaintiff in error was notified that the motion would be presented to the court on the 14th of April. When the motion was filed the security had not been given, but before the time fixed for hearing it was tendered in proper form and accepted. Early in the. present term that motion was overruled.
The docketing of the cause by the defendant in"error in advance of the return day of the writ did not' prevent the plaintiff in error from doing what was necessary while the writ was in life to give it full effect. The present motion to dismiss is, therefore, overruled.
The original rule allowing a motion to affirm to be united with a motion to dismiss was promulgated May 8, 1876, 91 U. S. vii., and in Whitney v. Cook, 99 U. S. 607, decided during the October Term, 1878, it was ruled that the motion to affirm could not be entertained unless there appeared on the record at least some color of right to a dismissal. This practice has been steadily adhered to ever since, and, in our opinion, prevents our entertaining the motion to affirm in this case. That motion is consequently Denied.
In Gaines v. Corbin and Another, there is a motion to dismiss, with which is united a motion to affirm.
These motions are denied. There is not sufficient color of right to a dismissal to make it proper for us to entertain a motion to affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
City of Clearwater v. State, 108 Fla. 623 (Fla. 1933)…ciaries as against the others who are before the court, no objection by respondents will lie to the fact, that two or more claimants have joined in one writ, if each would have been entitled if he had sued separately. Davies v. Corbin, 112 U, S. 36, 5 Sup. Ct. Rep. 4, 28 L. Ed. 627; Hawley v. Fairbanks, 108 U. S. 543, 2 Sup. Ct. Rep. 846, 27 L. Ed. 820; State ex rel. Flaugh v. Jaudon, 286 Mo. 181, 227 S. W. Rep. 48; State ex rel. Johnson v. State Tax Collector, 39 La. Ann. 530, 2 Sou. Rep. 59; 38 C. J. 47, 18 R…
-
Sholtz v. State, 122 Fla. 249 (Fla. 1935)…ion by respondents will lie to the fact that two or more claimants [*253] have joined in one writ, if each would have been entitled if he had sued separately.” In support thereof we cited the following authorities: “Davies v. Corbin, 112 U. S. 36, 5 Sup. Ct. Rep. 4, 28 L. Ed. 627; Hawley v. Fairbanks, 108 U. S. 543, 2 Sup. Ct. Rep. 846, 27 L. Ed. 820; State, ex rel. Flaugh, v. Jaudon, 286 Mo. 181, 227 S. W. Rep. 48; State, ex rel. Johnson, v. State Tax Collector, 39 La. Ann. 530, 2 Sou. Rep. 59; 38 C. J. 47, 1…
-
Campbell v. State, 124 Fla. 244 (Fla. 1936)…s a matter of no legal concern to the respondents, since they possess no lawful right to raise or interpose objections on that score insofar as the enforcement of the duty to make an appropriate tax levy is concerned. Davies v. Corbin, 112 U. S. 36, 5 Sup. Ct. Rep. 4, 28 L. Ed. 627; State, ex rel. Johnson, v. State Tax Collecteor, 39 La. Ann. 530, 2 Sou. Rep. 59; City of Clearwater v. State, ex rel. United Mutual Life Ins. Co., 108 Fla. 623, 147 Sou. Rep. 459; Humphreys v. State, ex rel. Palm Beach Co., 108 Fla.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sage v. R.R. Co., 96 U.S. 712 (U.S. 1877)
- Whitney v. Cook, 99 U.S. 607 (U.S. 1878)
- Davies v. Corbin & Others, 112 U.S. 36 (U.S. 1884)