JACOBS
v.
GEORGE
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The Supreme Court dismissed an appeal from a territorial court judgment because the appellant failed to obtain and serve a citation on the appellee within the required time period, despite the appeal having been allowed and a bond filed. The Court held that when an appeal is allowed after the term in which the judgment was rendered, a citation must be issued and served before the end of the next ensuing term of the Supreme Court, or the appeal becomes inoperative if no waiver is shown.
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The Chibe Justice:
Judgment in this case was rendered by the Supreme Court of the Territory of Arizona, January 19, 1889, that the judgment of the court below under review by that court be reversed and the complaint dismissed with costs.
January 13, 1890, being-one. of the days of the next regular term of the court, an appeal was prayed to this court, the appeal was allowed January 14, 1890, conditioned on giving bond, and certain findings of the Supreme Court were filed that' day. January 24, 1890, the required bond was approved and filed, and the record was filed here, March 14, 1890, at October term, 1889. No citation was issued and served, nor has any appearance for appellee been entered, nor is any waiver of citation shown.
It must be regarded as settled that: (1) Where an appeal is allowed in open court, and perfected during the term at which the decree or'judgment appealed from was rendered, no citation is necessary ; (2) Where the appeal is allowed at the term of'the decree or judgment, but not perfected until after the term, a citation is necessary to bring in the parties; but if the appeal be docketed here at our next ensuing term, or the record reaches the clerk’s hands seasonably for that term, and legal excuse exists for lack of docketing, a citation may be issued by leave of this court, although the time for taking the appeal has elapsed; (3) Where the appeal is allowed at a term subsequent to that' of the decree or judgment, a citation is necessary, but may be issued properly returnable, even after the expiration of the time for taking the appeal, if the allowance of' the appeal were before; (4) But a citation is one of the necessary elements of an appeal taken after the term, and if it is not issued and served before the end of the next ensuing term of this court, and not waived, the appeal becomes inoperative. Hewitt v. Filbert, 116 U. S. 142; Richardson v. Green, 130 U. S. 104; Evans v. State Bank, 134 U. S. 330 ; Green v. Elbert, 137 U. S. 615. Appeal dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Mattingly v. Nw. Va. R.R. Co., 158 U.S. 53 (U.S. 1895)…he citation was not signed until April 14, 1891, and not served until the seventeenth of the month, but neither the signing nor the service of the citation- was jurisdictional, its only office being'to give notice to the appellees. Jacobs v. George, 150 U. S. 415. [*57] By the act of February 25, 1889, o. 236, 25 Stat. 693, it was provided “ that in all cases where a final judgment or decree shall be rendered in the Circuit Court of the United States in which there shall have been a question involving the ju…
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Am. Baptist Home Mission Soc. v. Barnett, 26 F.2d 350 (2d Cir. 1928)…d) 624 (C. C. A. 8). Omitted appellees may, it is true, be brought in by amendment of the citation or by voluntary appearance. Lockman v. Lang, 132 F. 1 (C. C. A. 8); Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. Ed. 872; Jacobs v. George, 150 U. S. 415, 14 S. Ct. 159, 37 L. Ed. 1127. But to allow a necessary party to join as appellant is in effect to grant him an appeal after the statute has forbidden it. See 2 Buling Case Law, 66, § 48, and cases cited above in this paragraph. It is urged that a…1 / 2
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Pueblo de Taos v. Archuleta, 64 F.2d 807 (10th Cir. 1933)…the rule cannot avail here, for it rests upon the presumption that parties are constructively present during the entire term, and there can be no such presumption as-to defendants who are not served and who make no appearance. In Jacobs v. George, 150 U. S. 415, 14 S. Ct. 159, 160, 37 L. Ed. 1127, the Supreme Court dismissed an appeal where there was no citation served on appellee, and no entry of appearance by him. These rules were laid down: “It must be regarded as settled that: (1) Where an appeal is a…1 / 2
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. Green, 130 U.S. 104 (U.S. 1889)
- Evans v. State Bank, 134 U.S. 330 (U.S. 1890)
- Green v. Elbert, 137 U.S. 615 (U.S. 1891)
- Hewitt v. Filbert & Another, 116 U.S. 142 (U.S. 1885)