WILLIAM YEATON AND OTHERS, APPELLANTS
v.
DAVID LENOX AND OTHERS
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William Yeaton appealed a decree from the Alexandria circuit court but failed to comply with procedural requirements, including failing to obtain the judge's allowance of the appeal and failing to provide proper notice to the opposing party. The Supreme Court dismissed the appeal, holding that appeals from chancery decrees must follow the same procedural rules governing writs of error, which require judicial allowance of the appeal and a citation with at least twenty days' notice before the return day.
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Mr Chief Justice Marshall delivered the opinion of the Court In this case a decree was pronounced by the court of the United States for the county of Alexandria in December 1829, from which the defendants in that couit appealed, but did not bring up the record. At January term 1832, the appellees, in pursuance of a rule of this court, brought in the record, filed it, and moved that the suit should be dismissed. The court ordered a dismission. On the 9th day of March 1832, a citation was sighed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected.
A copy of the record was returned with this citation “ executed,” and filed with the clerk. The appellees move to dismiss the suit because the record has been irregularly brought up.
The act of March 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act it has been always held that a decree may be prayed in court when the decree is pronounced; but if the appeal be prayed after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error. The judicial act directs that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party having at least twenty days notice. This notice, wé understand, is twenty days before the return day of the writ of error. In .this case the appeal is not allowed by the judge, and the citation is to appear before the court then sitting. The record is brought up irregularly, and the cause must be dismissed..
On consideration of the rule,granted in this cause, and of the arguments of counsel, as well for the appellants as for the appellees, thereupon had, after mature deliberation, it is the opinion of this court that the record is brought up irregularly, and that this appeal should be dismissed: whereupon, it is ordered and decreed by this court, that the appeal be, and the same is hereby dismissed with costs.
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Citator
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Hewitt v. Filbert & Another, 116 U.S. 142 (U.S. 1885)…ered, a citar' tion returnable at the same term with the appeal or writ of' error, is necessary to perfect our jurisdiction of the .appeal or the writ, unless it has been in some proper form waived. The San Pedro, 2 Wheat. 132, 142; Yeaton v. Lenox, 7 Pet. 220; Villabolos v. United States, 6 How. 90; United States v. Curry, 6 How. 106, 111; Castro v. United States, 3 Wall. 46, 50; Alviso v. United States, 5 Wall. 824. In Dayton v. Lash, 94 U. S. 112, it was held that, if a citation was actually issued bu…
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Villabolos v. The United States, 6 How. 81 (U.S. 1848)
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Hudgins v. Wyndham Kemp, 18 How. 530 (U.S. 1855)…t, and therefore to have notice. But when the appeal is taken out of court, the citation is necessary to give him notice. In all other respects the same rules apply to either mode of taking an appeal. Reilly v. Lamar, 2 Cranch, 344; Yestor v. Lenox, 7 Pet. 220. The aet of March 3,1803,-which authorizes the appeals, provides that they shall be subject to the same rules, regulations, and restrictions as are prescribed by law in cases of writs of error. And in the base of Innerarity v. Byrne, 5 How. 295, wh…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The San Pedro-Valverde, 2 Wheat. 132 (U.S. 1817)
- Wood v. Lide, 4 Cranch 180 (U.S. 1807)