WAUTON
v.
DEWOLF
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Florence W. Wauton appealed a Circuit Court decree entered against her in a diversity citizenship case, but failed to file the necessary record within the required timeframe, causing her first appeal to expire. The Supreme Court denied her motion to set aside the dismissal and docket the case because a second appeal she attempted to file came after July 1, 1891, the deadline established by Congress for preserving the Court's jurisdiction over pending diverse citizenship cases, and therefore the Court would lack jurisdiction to hear the case even if it were properly docketed.
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Mr. Chief Justice .Fuller delivered the opinion of the'court.
This cause was docketed and dismissed November 3, 1891, upon a certificate of the clerk of the Circuit Court of the United •States of the Ninth Judicial Circuit in and for the Northern District of California, to the effect that in a certain cause pending in that court, wherein Florence W. Wauton was complainant and Frank E. DeWolf, Isabella 0. DeWolf, and Horace M. Barnes were defendants, a final decree was rendered on the 7th of July, a.d. 1890, in favor of defendants and against, the complainant,, and that on the ,29th of September, 1890, complainant prayed an appeal to the Supreme Court of the United States, which was allowed. A motion is now made to set aside the order of dismissal and for leave to docket the case and file the record.
The transcript submitted with the motion shows that, as stated in the certificate, the decree of the Circuit Court was entered July 7, 1890, and an appeal was allowed September 29, 1890, but nothing was done, and the case was not docketed here at the October term, 1890. On July 27, 1891, a bond on appeal was presented to and approved by the Circuit Judge, who on the same day signed a citation returnable to this court on September 19, 1891.
When the term elapsed at which the appeal of September 29, 1890, was returnable, without the filing of the record, that appeal had spent its force, Evans v. State Bank, 134 U. S. 330, and appellees caused the case to be docketed and dismissed as above Stated.
Conceding that the approval of the bond, July 27,1891, and the signing of the citation, were equivalent to the allowance of a second appeal, returnable to the present term, the transcript of record was not filed on or before the return day, nor delivered to our clerk until November 18,1891; and the sole excuse' for this delay which appellant presents, is that it was supposed that the clerk of the Circuit Court would transmit the transcript when it was completed. It appears from the record that the suit involves -land situated in California, and was commenced in the state court against the defendants who were citizens of Rhode Island and New York, and after summons by publication, was removed on their application to the Circuit Court. The ground of Federal jurisdiction was diverse citizenship.
By the act of March 3, 1891, (26 Stat. 826, c. 517,) establishing the Circuit Courts of Appeals, the jurisdiction of this court, in cases-dependent upon diverse citizenship, was taken away; but by the joint resolution of March 3, 1891, (26 Stat. 1115,) the jurisdiction was preserved as to pending cases and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891.
So far then as this second and independent appeal is concerned, it came too late, and as, if the case were now docketed, under that appeal, it would have-to be dismissed for want of jurisdiction, we are, without passing upon the questioh of laches, compelled to deny the motion.
Motion denied.
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Gulf v. Shane, 157 U.S. 348 (U.S. 1895)…ersy. It is settled “ that by the joint resolution of March 3, 1891, 26 Stat. 1115, the jurisdiction was preserved as to pending cases and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891.” Wauton v. De Wolf, 142 U. S. 138, 140; Mason v Pewabic Mining Co., 153 U. S. 361. The assignments of error are many, but we deem it necessary to consider only one of them, namely, that which relates to the method adopted bjr the court in empanelling the jury. It is thus recited in…
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Nat'l Exch. Bank of Baltimore v. Peters, 144 U.S. 570 (U.S. 1892)…hteen hundred and ninety-one.” 26 Stat. 1115, 1116. The case in hand did not come within either of the six classes of cases specified in section five; and as the appeal was not taken until after July 1, 1891, it must be dismissed. Wanton v. DeWolf, 142 U. S. 138. When the decree was entered, appellants had two years thereafter in whibh to take an appeal to this court. The act and resolution of March 3,1891, declared that the right must be exercised prior to July 1,1891. Although the appellate powers of - th…
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Mason v. Pewabic Mining Co., 153 U.S. 361 (U.S. 1894)…that year. This case does not come within either of the classes of cases specified in section 5, and the appeal was not prayed until August 20, 1893. It must therefore be dismissed. National Exchange Bank v. Peters, 144 U. S. 570; Wauton v. De Wolf, 142 U. S. 138; Ogden v. United States, 148 U. S. 390; Aspen Co. v. Billings, 150 U. S. 31; Voorhees v. Noyes Manf'g Co., 151 U. S. 135; Nashua & Lowell Railroad v. Boston & Lowell Railroad, 5 U. S. App. 97. It is said,- however, that the disposition' of the cas…
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- Evans v. State Bank, 134 U.S. 330 (U.S. 1890)