Opinion
JANUARY TERM, 1849.
The meaning of the forty-third rule of this court is, that, if a judgment or decree in the court below be rendered more than thirty days before the commencement of the term of this court, and the record be not filed within the first six days of the term, the appellee or defendant in error may docket the case, and move for its dismissal as the rule prescribes. But if the judgment or decree of the court below be rendered less than thirty days before the commencement of the term of this court, the rule does not apply.
Mr. Fendall moved to dismiss the appeal, upon the grounds stated in the opinion of the court, which motion was opposed by Mr. Toucey (Attorney-General).
THIS was an appeal from the District Court of the United States for the Southern District of Mississippi.
This is an appeal from the decree of the District Court for the Southern District of Mississippi.
The bill was filed against the United States, under the acts of June 17, 1844, and May 26, 1824, to try the validity of the complainants' claims to certain lands in Mississippi. At the November term of the District Court, 1847, a decree was entered in favor of the petitioners, and at the same term an appeal to the Supreme Court of the United States was granted by the District Court, on the application of the defendants. An appeal thus allowed requires no notice to the appellee. A motion is now made to dismiss this appeal, on the following grounds: —
1. Because the appeal is not made to any specified term of the Supreme Court.
2. Because it is not made returnable to the term of the Supreme Court next following the decree.
3. Because the record is not filed at the term of the Supreme Court next following the decree.
Under the act of 1824, the party against whom the decree is entered may appeal within one year. On the 14th of March, 1848, a transcript of the record was made out, and it was filed in this court at the present term. From the time this decree was entered, to the commencement of the ensuing session of the Supreme Court, there were less than thirty days. And under such circumstances it appears, by the forty-third rule, that the appellant was not required to file the transcript of the record in this court at the first term.
The rule provides, that, "in all cases where a writ of error, or an appeal, shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause and file the record with the clerk of this court within the first six days of the term." If this be not done, the other party, on producing the proper certificate, may have the cause docketed and the appeal or writ of error dismissed.
The rule does not operate where a decree is entered less than thirty days before the term of this court, and consequently the cause is not liable to be docketed and dismissed. The appellants, under the circumstances of this case, are chargeable with no neglect for failing to file the record with the clerk at the first term of the Supreme Court after the decree was entered. The motion to dismiss is overruled.
Order.
On consideration of the motion to dismiss this cause, made by Mr. Fendall, on a prior day of the present term of this court, to wit, on Friday, the 2d instant, and of the arguments of counsel thereupon had, as well in support of as against the motion, it is now here ordered by this court, that the said motion be and the same is hereby overruled.