STEWART
v.
MASTERSON
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Stewart obtained a decree with an allowance of appeal in November 1884, and an appeal bond was approved in October 1885 before the return term began, but the case was not docketed in the Supreme Court until June 1886, after the 1885 term had ended. The Court held that the original appeal became inoperative due to the failure to timely docket it during the 1885 term, and although a citation signed in November 1885 could constitute a new appeal returnable in 1886, the bond approved for the first appeal was no longer valid for that new appeal. The Court dismissed the appeal unless Stewart filed a new bond of $500 before March 19.
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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, 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, 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 he dismissed, unless the appellant shall, on or before the 19th day of Ma/rch next, file with the cleric of this cowrt a bond in the penal sum, of $500, conditioned accordi/ng to la/w, for the piorposes of the appeal, with sureties .to the satisfaction of the Justice of this court allotted to the Fifth Circuit.