THIS was an appeal from the Circuit Court of the United States for the District of Columbia.
Two motions were made in respect to it. One by Mr. Coxe, to dismiss the appeal, and issue a procedendo, and the other by Mr. Lawrence, on behalf of the appellants, for a writ of supersedeas, directed to the court below, for the purpose of staying the execution of the decree.
Mr. Coxe's motion was as follows:
It is now moved by Richard S.C.oxe, solicitor of Lloyd N. Rogers, administrator of Elizabeth P. C. Law, deceased, and Edmund Law Rogers and Eleanora A. Rogers, surviving children of Lloyd N. Rogers and Elizabeth P. C. Law, his wife, and of the representative of William Blane, deceased, that this appeal be dismissed.
1. There is no case as above entitled, and the real parties interested in the case of which a record is filed, are not made parties to this appeal, namely, the said Lloyd N. Rogers, administrator, &c., Edmund Law Rogers and Eleanora A. Rogers, and the executors of William Blane, in whose favor the decree of the Circuit Court appears to have been made.
2. That it appearing from the certificate of the clerk of said Circuit Court, that an appeal was duly prayed by said appellants, from the decree entered in this cause, and that it was duly allowed, and an appeal bond, in the penal sum of $200, approved 9th December, 1853, is the only appeal bond filed in the case, and such bond does not appear to have been given to the party defendant, in the above entitled case.
And upon the facts appearing in the certificate of the clerk of said Circuit Court, that no good and sufficient appeal bond has been filed, so as by law to operate as a supersedeas.
And whereas it also appears as aforesaid, that the said James Adams, trustee, is and has been in contempt, in consequence of his neglect and omission to perform and obey the order of said Circuit Court made on the 18th December, 1852; and that said Circuit Court has omitted and neglected to enforce said order and decree against the said James Adams, trustee as aforesaid; it is now further moved by said solicitor, that a writ of procedendo do issue from this court, to be directed to the said Circuit Court, directing and commanding said court to proceed forthwith to enforce, by appropriate process, the said order and decree of said Circuit Court.
Mr. Lawrence's motion was as follows:
The appellants in this case, by their counsel, respectfully submit to this court,
That in consequence of a mistake and surprise, the facts in regard to which fully appear in the affidavits herewith filed, they failed to file a supersedeas bond within ten days after the final decree was entered therein in the Circuit Court; that the fund in controversy is now in the hands of the trustee appointed by the said court, and securely invested to the satisfaction of all the parties to said cause; that the said appellants have offered in the said court to give bond in double the amount of the sums decreed to be paid; that the parties to whom the said moneys have been decreed to be paid reside out of the said District of Columbia, and the Circuit Court has refused to grant the supersedeas on application formally made in that court for that purpose, and thereupon they move this Honorable Court for a writ of supersedeas to the Circuit Court of the District of Columbia, to stay execution of the decree heretofore rendered by the said court in this cause, and from which an appeal hath been prayed to this court, on such terms as to your Honors may seem meet.
These motions were argued by Mr. May and Mr. Bradley, in support of the motion of Mr. Lawrence, for a supersedeas, and by Mr. Coxe and Mr. Carlyle, in support of Mr. Coxe's motion, to dismiss the appeal.
The facts are stated in the opinion of the court.
Mr. May and Mr. Bradley contended
1. That this court has power to interfere. In Hardeman v. Anderson, 4 How. 640, there was a neglect of the clerk. Here there was no neglect, but the hearing below was irregular, and a surprise upon Mr. May, who had no solicitor in court. When set down for hearing, the case ought to have been put on the order book.
2. The hearing was irregular. The case ought not to have come on until the next term. Maryland Chanc. Prac. 112.
3. If the money is paid according to the decree, it will go beyond the jurisdiction of the court, and may be lost. In such a case, the court will interfere. 6 Har. & Johns. 333; 3 Dan. Ch. Pr. 1611. We offer to submit to any terms which the court may direct.
Mr. Coxe and Mr. Carlyle contended that the appeal should be dismissed. The case arose upon marriage settlements, and was referred to the auditor. It was then set down for hearing by consent. Maryland Chancery Practice had nothing to do with the case. Adams had $61,000, in his hands since June twelvemonth. He has only given bond as executor, and not as trustee. We obtained a rule upon him to show cause why he should not pay over the money, and that question is not decided to this day.
Mr. Justice McLEAN delivered the opinion of the court.