Appeal bond

“ Cochrane, 105 U.S. 262, 26 L. ed. 989, it was decided that in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a compliance with the law requiring the appeal to be filed in the clerk's office. ”

“ A mere failure to execute the bond within due time may be ground for dismissing an appeal, but does not deprive the court of the right to proceed to a determination of the appeal. So, here, the waiver by the infant's guardian ad litem and next friend of a bond by Buckner and wife upon their appeal-the latter having waived an appeal-bond on his part-did not affect the jurisdiction of the court. ”

“ Although the adoption of state procedure is not obligatory upon the Federal courts when sitting in equity, they have frequently rendered summary judgment against sureties on appeal bonds. See cases in the margin. [2] Some of the district courts, by formal rule of court require the bond to contain an express agreement that the court may, upon notice to the sureties, proceed summarily against them in the original action or suit. ”

“ In all civil cases, at common law, any issue of fact shall be determined by a jury, at the instance of either party; and an appeal shall lie in any case, civil or criminal, from the judgment of said commissioners to the said district court where the amount involved in any civil case is two hundred dollars or more, and in any criminal case where a fine of more than one hundred dollars or imprisonment is imposed, upon the filing of a sufficient appeal bond by the party appealing, to be approved by the court or commissioner. ”

“ Your Honor, I was going to ask for some time in which to get his affairs straightened out, and within which to file an appeal, should we so desire to do.
'The Court. Very well. If you file an appeal, of course, if you apply for bond, I will tell you now that I will grant you bond. Be permitted to go under the bond you are under now. How much time do you want? ”

“ A motion is made by the appellant's counsel for a supersedeas, on the ground that the hearing of the case in the Circuit Court was brought on irregularly, and the decree entered in the absence of the principal counsel for the defendants below; that by reason of this, an appeal-bond was not filed within ten days from the allowance of the appeal. ”

“ The statute confers the right of appeal which they have exercised, and they are entitled to the judgment of this court on their complaint. The justice who rendered the decree has fully recognized the right of appellants to have it reviewed, and has perfected the appeal by approving the bond. To increase this bond as is now asked for would be an act of great hardship, and tantamount to a denial of the right of appeal, as of course the assignees could not give the security demanded. ”

“ None of the objections to this appeal are, in our opinion, well taken, except the one which relates to the approval of the bond. That, we think, must be sustained. The security required upon writs of error and appeals must be taken by the judge or justice. ”

“ On December 1, 1888, it was ordered that leave be granted Cable to prosecute the appeal in the name of the complainants to the original cause, and that this appeal should become a supersedeas on his filing an appeal bond in the sum of $80,000. ”

“ But it this were otherwise, and through mistake or accident no bond, or a defective bond, had been filed, this court would not dismiss the appeal, except on failure to comply with an order to give the proper security within such reasonable time as it might prescribe. What is essential to an appeal is allowance, citation to the appellees, or equivalent notice or waiver, and the bringing up of the record at the next term of this court. ”

“ In the last case, time was granted within which to give the bond, or the case be dismissed. The bond may be taken and approved before any judge or justice authorized to allow the appeal or writ of error. ”

“ If, as decided by the Supreme Court of Louisiana, the appealbond in such cases is a security for the payment of the notes on which the application for the order of seizure and sale is based, it is plain that the satisfaction of a bond for an appeal on one note cannot be a satisfaction of another bond for another appeal on a different note. Each note is a separate cause of action, and the satisfaction of one does not necessarily imply the satisfaction of another. ”

“ The appeal cannot operate as a supersedeas because of the insufficiency of the bond. The bond is in the penalty of $500. A writ of error or an appeal is not a supersedeas unless bond be given in a sum sufficient to secure the whole amount of the judgment or decree, in case of affirmance. ”

“ It was said that if the court should confine itself to the record, the presumption was that the title of the appeal followed the obligation of the bond. On this ground the court, with expressions of regret, considered itself not at liberty to entertain a motion for leave to file an additional bond.
We generally are slow to overrule the decisions of courts other than courts of the United States upon matters of local practice. ”

“ The papers in evidence established a complete accord and satisfaction fully performed, in pursuance of an agreement to extinguish the liability of the defendants by reason of the original decree, and so to satisfy the obligation of the bond on which they are sued. The right of the defendants to appeal from the decree, and the fact that they had declared their intention to do so, created such a dispute in respect to their liability as made it a proper subject of compromise. ”

“ He supposes there can never be an appeal, in this case, by the plaintiff, because he gets a judgment on his bond; and that the defendant alone can appeal, who therefore, instead of being injured, obtains a privilege. Permit me to examine the force of this. By means of a suit, on a real or fictitious claim, the citizens of the most distant states may be brought to the supreme federal court. Suppose a man has my bond for a hundred pounds, and a great part of it has been paid, and, in order fraudulently to oppress me, he assigns it to a gentleman in Carolina or Maryland. ”

“ Plaintiffs also argue that Appellants must either post a bond in the amount of the default judgment or obtain a stay before proceeding on appeal. They rely solely on one sentence plucked from the Niemi I decision: "After a final judgment, too, an absent civil defendant cannot appeal without either posting a bond or coming to court and winning a stay." ”

“ The bond approved October 10, 1885, must be deemed to have been taken under the appeal allowed in open court, and, as that appeal became inoperative by reason of the failure to d cket it here during the term of 1885, the only question we have now to determine is whether the signing of the citation November 2, 1885, was in effect the allowance of a new appeal, returnable at the term of 1886. ”

“ By the practice in equity, as administered in the court of chancery and the house of lords in England, and in the courts of chancery and courts of errors in the states of New York and New Jersey, appeals lay from interlocutory, as well as from final, orders or decrees; and upon an appeal from an interlocutory order or decree the appellate court had the power of examining the merits of the case, and, upon deciding them in favor of the defendant, of dismissing the bill, and thus saving to both parties the needless expense of a further prosecution of the suit. ”

“ Plaintiff also may bring error to reverse his own judgment, where injustice has been done him, or where it is for a less sum than he claims; but he, like the defendant, is required to give bond to answer for costs. ”

“ Causes in the court of private land claims are in effect equity causes, and brought to this court by appeal, and, as observed by Chief Justice Ellsworth, in Wiscart v. Dauchy, 3 Dall. 321: 'An appeal is a process of civil-law origin and removes a cause entirely, subjecting the fact, as well as the law, to a review and retrial; but a writ of error is a process of common law, and it removes nothing for examination but the law.'
The remedy by appeal in its original sense was confined to causes in equity, ecclesiastical, and admiralty jurisdiction. ”

“ Multifariousness as to subjects or parties, within the jurisdiction of a court of equity, cannot be taken advantage of by a defendant, except by demurrer, plea, or answer to the bill, although the court in its discretion may take the objection at the hearing, or on appeal, and order the bill to be amended or dismissed. ”

“ A principle, too, has been established, by which each claimant is permitted during the five years allowed for appeal after a final decree, to reserve his objection to the pleadings till a convenient time, and then obtain reversals on a summary motion, for defects that are amendable on application in the discretion of the circuit court, by the general rules of courts of equity and law, and by right, under the provisions of the judiciary act. ”

“ In all proceedings in the territorial courts in the nature of suits in equity, therefore, as well as in those proceedings in the nature of actions at common law, in which no trial by jury is had, either because a jury has been duly waived or because the issues tried are issues of law only, the appellate jurisdiction of this court must be invoked by appeal, and not by writ of error. ”

“ In the case before us every plea tendered by the defendants embraces within its commencement the entire cause of action, averring that the plaintiff should not have or maintain his action; yet each of them in its body and substance, is limited to the condition of the injunction-bond and to some stipulation in that condition to which each plea specifically refers. ”

“ That in a court of competent jurisdiction, where, according to its established procedure, the whole merits of the case were open, at all events, to the parties, however much they may have failed to take advantage of them or may have waived any of their rights, a final adjudication has been given that a debt or obligation exists, which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a higher tribunal. ”

“ In several of these it has been held that the real party in interest is always the proper plaintiff, while in others it is held that the suit must be brought by the obligor in the bond for the use of the party in interest. ”

“ But such an objection can only be taken advantage of by a plea in abatement: for if one party only is sued, it is not matter in bar of the suit, or in arrest of judgment, upon the finding of the jury, or of variance in evidence upon the trial. Thus, for instance, if one obligor be sued upon a joint bond, and upon oyer the bond is spread upon the record, and thereby becomes a part of the declaration, by which it appears that another person is named as a joint obligor ”

“ The 8th section provides that appeals may be taken from the District to the Circuit Court in all cases in equity, and writs of error in cases at law where the amount in controversy exceeds $500. Appeal is also allowed to any creditor whose claim is rejected, or to an assignee dissatisfied with the allowance of a claim. ”

“ Attachment measures currently on the books reflect this concern. All but a handful of States require a plaintiff's bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. (See appendix.) Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing. ”

“ But if it should appear upon the face of the declaration, or other pleading of the plaintiff, that another jointly sealed the bond with the defendant, and that both are still living; the court will arrest the judgment, and the objection may be taken by demurrer: because the plaintiff himself shows that another ought to be joined; and it would be absurd to compel the defendant to plead facts which are already admitted. ”

“ Where by consent of parties the case has been submitted for a final determination of the merits, or upon the face of the bill there is no ground for equitable relief, the appellate court may finally dispose of the merits upon an appeal from an interlocutory order. ”

“ Thereupon the receiver and the attorneys repaired to the court, and the receiver asked the judge what he should do, and was simply told to obey the decree,-the complainants' attorney at the same time offering to furnish the security named by the court on the appeal. The receiver then delivered the bonds to the defendants. ”