DAYTON
v.
LASH
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In Dayton v. Lash, the Supreme Court addressed whether an appeal could be dismissed when the required citation was issued but not properly served before the beginning of the term. The Court held that while service of citation is necessary to bring parties before it, failure to serve a citation before the first day of term does not automatically void an appeal; instead, the Court may impose conditions on the appellants, such as requiring service of a new citation by a specified future date, to preserve jurisdiction. The decision established that technical defects in citation service can be remedied through the Court's equitable discretion rather than through dismissal.
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Mr. Chief Justice Waite delivered the opinion of the court.
This record shows that an appeal was allowed, a supersedeas bond approved, and a citation signed Feb. 26,1876 ; but it does not show a service of the citation, and the affidavits presented upon this motion fail to satisfy-us that proper service was ever in fact made. The appeal however, duly obtained; and the record has been filed and'the cause docketed here. We have, therefore, the record; but a service of the citation is necessary to bring the parties before us, as the appeal was taken out of term. We cannot proceed to hear and determine the cause until the parties are here, either constructively by service, or in fact by their appearance.
Perhaps the language of Mr. Chief Justice Taney, in Villabolos v. United States, 6 How. 90, and in United States v. Curry, id. 112, as well as of Mr. Justice Nelson, in City of Washington v. Dennison, 6 Wall. 496, if read literally and'without reference to the facts then under consideration, may bebroad: enough to justify a dismissal of this appeal, because .the citation was not served before the first day of the term. But in the ca,se of Yillabolós, the real question was as to the validity .of the citation, and not' as to its service, if valid; in Curry’s case, the citation was not issued until after the term at which the appeal was returnable ; and in City of Washington v. Dennison, the effort was to obtain a supersedeas in a case where the writ was not sealed until eleven days after the rendition of -the judgment. Nob© of the-cases made it necessary, to decide that a citation actually issued-upon the allowance of an appeal must be served before The first day of the term, in order to preserve our jurisdiction; and we think that such an omission does not avoid the appeal, it rather furnishes a case where, under the rule is Martin Hunter’s Lessee, 1 Wheat. 361, and followed in Davidson v. anier, 4 Wall. 454, we “may grant summary relief” “by imposing such terms upon the appellants as under the circumstances may be legal and proper.”
As this appeal was returnable to the present term, and some attempt was made, to serve the citation, which the appellants may have supposed was actually completed, we order that, unless the appellants cause a new citation, returnable on the first Monday in February next, to be issued and served upon the appellee before that date, the appeal be dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Donovan v. Pa. Co., 199 U.S. 279 (U.S. 1905)
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The Framlington Court. Newfoundland Exp. & Shipping Co. v. United British S. S. Co., 69 F.2d 300 (5th Cir. 1934)…ime to present Ms defenses. 1 f the surety were to be considered a necessary party, ihe failure to serve it with citation would not divest Ihis court of jurisdiction, and we could now have service made on such terms as might be just. Dayton v. Lash, 94 U. S. 112, 24 L. Ed. 33; Rector v. Alcorn (C. C. A.) 204 F. 748. But we do not think the surety on the release bond was a, necessary party. The liability of the surety was contingent on a decree against the principal. As yet there is no such judgment. The s…
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Tripp v. Santa Rosa St. R.R. Co., 144 U.S. 126 (U.S. 1892)…in many cases, while much liberality is exercised in permitting service to be made during the return term, or a new citation to be issued, where the circumstances invoke the discretion of the court. Hewitt v. Filbert, 116 U. S. 142; Dayton v. Lash, 94 U. S. 112. The citation may be waived by a general appearance, Villabolos v. United States, 6 How. 81, 90; or by the acceptance of service of a defective citation, Bigler v. Waller, 12 Wall. 142; or by action equivalent to the acknowledgment of notice, Grood…
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