Edmonson v. Bloomshire
APPEAL from the Circuit Court for the Southern District of Ohio; the case being thus:
The Judiciary Act provides that final decrees in a circuit court may be re-examined, reversed, or affirmed here 'upon a writ of error whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, and assignment of errors, and prayer for reversal, with a citation to the adverse party.'
If further enacts that 'writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be a feme covert &c., then within five years as aforesaid, exclusive of the time of such disability.'By an amendatory act, appeals in cases of equity are allowed 'subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.'
With these provisions of law in force, John Edmonson, Littleton Waddell and Elizabeth, his wife, filed a bill in 1854 in the court below, against Bloomshire and others, to compel a release of title to certain lands, and on the 16th July, 1859, the bill was finally dismissed. On the 26th May 'an appeal to the Supreme Court of the United States was allowed,' and the appellants ordered to give bond in $1000. No further step was taken in the case till November 14, 1865, when a petition was filed in the Circuit Court, reciting the decree, and the allowance (May 26, 1860) of the appeal, and setting forth the death of the plaintiff Edmonson, intestate, on the 30th June, 1862, leaving a part of the petitioners his only heirs-at-law; and that, on the 20th June, 1864, the plaintiff Elizabeth Waddell also died intestate, leaving the other petitioners her only heirs-at-law, and that the interest of said intestates had descended to said petitioners as their respective heirs-at-law; and further setting forth, that no appeal-bond had been given under said order allowing the appeal. The prayer of the petition was that the petitioners be allowed 'to become parties to the appeal, and to perfect the same by now entering into bond for the appeal.'
Thereupon, on the same 14th November, 1865, this entry was made by the court:
'WADDELL, EDMONSON et al.,
BLOOMSHIRE et al.
426.-Petition to perfect appeal.
'And now come the said petitioners, and the court being satisfied that the facts set forth in said petition are true, and that the prayer thereof ought to be granted, do order that said petitioners [naming the heirs of Edmonson], be admitted as parties plaintiff, in the place of said John Edmonson, deceased; and that the said [naming the heirs of Mrs. Waddell], be admitted as parties plaintiff in the place of the said Elizabeth Waddell, deceased; and that said petitioners have leave to perfect said appeal so allowed at the June Term, 1859, of this court, by giving bond in the sum of $1000, as therein provided.'
An appeal-bond was accordingly filed with, and approved by, the clerk, November 22, 1865. A citation (duly served) was issued on the 8th December, 1865, reciting the allowance of an appeal at the October Term, 1865, of the court, and citing the appellees to appear 'at the next term of the Supreme Court, to be holden on the first Monday of December next.' The transcript was filed here by the appellants for the first time on the 3d of January, 1866.
The case having been fully argued on the merits by Messrs. Stanbery and Baldwin, for the appellants, and by Mr. J. W. Robinson, by brief, contra, it was suggested from the bench that doubts were entertained by it as to the jurisdiction of the court over the case; the ground of the doubt, as the reporter understood it, being, that while the record showed that the only appeal asked for or allowed, was that of May 26th, 1860, the transcript was not filed during the term next succeeding the allowance of the appeal, nor till January, 1866; and thus that while the appeal had been taken in time the record had not been filed here in time to save it.
Mr. Stanbery now spoke in support of the jurisdiction:
The objection to the regularity of the appeal, he contended, comes too late, and had not been made by counsel. The case had been pending in this court more than three years. It had been fully argued on the merits by both parties. No motion had at any time been made by the appellees to dismiss it for any irregularity. The practice he believed to have been uniform to require a motion to dismiss before the case proceeds to a hearing. 
The appeal initiated in 1860 was not perfected until the order of November 14, 1865, when the bond was given. Till that last date there was, in fact, no appeal which required the transcript to be filed. When the appeal was allowed, all that remained to be done was to perfect the appeal so taken by giving bond and filing the transcript in this court, which might be done by order of court after expiration of five years. In The Dos Hermanos  it is said:
'It appears that the appeal was prayed for within the five years, and was actually allowed by the court within that period. It is true that the security required by law was not given until after the lapse of the five years, and under such circumstances the court might have disallowed the appeal and refused the security. But, as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal.'
This is our case.
If this is not so, a new appeal may be regarded as having been taken by the proceeding of November, 1865. The citation recites them as being the allowance of an appeal.
If any doubt was entertained by the court as to the efficiency of the appeal, because more than five years elapsed after the decree before the appeal-bond was given and transcript filed in this court, it is to be observed that Mrs. Waddell, the party entitled to an appeal, was under coverture at the date of the decree, and at the time of her death, June 20, 1864. The appeal was saved as to her heirs. Moreover, her interest was so connected with that of her co-plaintiff, Edmonson, that it is also saved as to him or his heirs. 
Mr. Justice MILLER delivered the opinion of the court.
^1 Mandeville v. Riggs, 2 Peters, 490; Brooks v. Norris, 11 Howard, 204.
^2 10 Wheaton, 306.
^3 Owings v. Kincannon, 7 Peters, 399; Williams v. Bank of the United States, 11 Wheaton, 414; Meese v. Keefe, 10 Ohio, 862.