Silsby v. Foote , 61 U.S. 290 ( 1857 )

Mr. Justice NELSON

delivered the opinion of the court.

This is a motion to dismiss an appeal docketed as No. 106, on the ground that a previous appeal, docketed No." 54, had been taken by the same parties, and from the same portions of the decree below. The final decision had been made by the court, between the parties, on the coming in of the master’s report on the 28th August, 1854, and an appeal duly taken on the 4th September following. The decree was special in its terms, and "was not settled or signed by the judge till the 11th December, 1856, on which day the second appeal was taken. As the appellant desired to appeal within the ten days, so as to stay execution, the second appeal was taken for abundant caution, as there might be a doubt from which period the ten days should be counted, namely, the time of the final decision of the court, or of the signing and filing of the special decree in form.

By the twenty-second section of the judiciary act, modified by the second section of the act of March 3, 1803, an appeal from a final decree must be taken within five years after the rendering or -passing of the judgment or decree complained of. And by the twenty-third section, as modified above, the appeal is a supersedeas, and stays execution in eases only where it is taken and a copy lodged for the adverse party within ten days (Sundays exclusive) after rendering the judgment or passing the decree complained of. The time to be taken as when the judgment or decree may be said to be rendered or passed may admit of some latitude, and may depend somewhat upon the usage and practice of the particular court. In the 'case of a simple judgment or decree, such as an affirmance or reversal, and the like, there would seem to be no difficulty in taking the appeal at any time within the ten days after the decision on the case was pronounced. But where the decree is special, and its terms to be settled, there is a propriety in waiting for its settlement before taking the appeal. Whether taken or not, may sometimes depend upon the decree as settled. In the second circuit, with the practice of which I am the most familiar, it is supposed by many of the profession that the proper time for taking the appeal in such a case is after the settlement of the decree. As this court, however, has always held, that if an appeal is taken in court at the time of rendering the decision, or during the term, no citation is necessary, and as appéals are, perhaps, more frequently taken within the ten days after the decision is pronounced and entered on the minutes by the clerk, it may be admitted that when thus taken it is regular, and stays execution in the court below. And we are also of opinion, that if taken within ten days after the decree is settled and signed by the judge, and filed with the clerk, that it is in time to stay the proceedings. The recognition of the two periods from which the ten days may be counted becomes necessary, on account of the difference in the modes of proceeding and practice in the different circuits. This question cannot arise in England, as the time, for appeal runs two years from the enrolment of the decree. (3 Dan. Pr., 131.) The time of enrolment cannot well be adopted by this court, as on many of the circuits it is understood, according to the practice, no enrolment of the decree takes place.

As, upon our view of thé case, presented on the motion, the first appeal was regular, the one taken and standing on the docket No. 106 should be dismissed.