Ex Parte Mussina v. Cavazos

61 U.S. 280 (____) 20 How. 280

EX PARTE IN THE MATTER OF JACOB MUSSINA AND ANGELA GARCIA LAFON DE TARNEVA, ET AL. APPELLANTS,
v.
RAFAEL GARCIA CAVAZOS AND WIFE, ET AL.

Supreme Court of United States.

Mr. Benjamin, of counsel for the said Jacob Mussina and Angela Garcia Lafon de Tarneva, appellants as aforesaid, and two of the defendants in the above-entitled cause.

Mr. Justice McLEAN delivered the opinion of the court.

A motion was made at this term for a rule on the district judge of Texas to show cause why a mandamus should not be issued, commanding him to allow an appeal in the above case. This rule was granted on the affidavit of Simon Mussina, as agent for a part of the defendants.

In his answer the judge says, "I am now ready to allow the appeal, and always have been; that some time before the 15th day of January, 1857, Mr. Daniel Atchison, of Galveston, stated to him, at chambers, that he wished to take an appeal for Jacob Mussina in the above case, and that the judge inquired whether the time limited for taking appeals had expired, and was informed it had not. The judge then replied, "Mr. Mussina has a right to an appeal, and I will allow it as a matter of course, when the opposing counsel shall appear, and I will fix the amount of the bond." It is his practice to allow appeals in the presence of counsel. Mr. Hale, the counsel for the defendants, lives in Galveston, near to the place where the court was held, and was daily in court. No application seems to have been made in court on the subject of the appeal; no citation was presented to the district judge; no bond for his approval. The conversation with Mr. Atchison, at the chambers of the judge, respecting the appeal, is all that was said to him on the subject. If it were mentioned in open court, he has no recollection of it.

The clerk of the court, the deputy clerk, the crier, the marshal of the United States and his deputy, who were in attendance on the court, all corroborate, on oath, the statement of the judge, and say no application was made in open court for the appeal; and no entry on the docket is found of such an application. From the certified copy of the petition for an appeal, it does not appear to have been filed, or that an entry of it was made on the docket.

A party wishing an appeal should make an application for its allowance in open court, or to the judge at his chambers, and should name his securities. And the bond should be prepared for the approval of the judge, and the citation for his signature, unless the appeal was prayed in open court and entered upon the record. It appears the decree in question was entered jointly against several defendants, and that an appeal by Patrick C. Shannon only, who was one of the defendants, was taken. Simon Mussina, on whose oath the rule was entered, was agent for Jacob Mussina, Angela Garcia Lafon Tarneva, who were also defendants, and he desired that these persons might be allowed an appeal, and also the other defendants, so as to remove the case to the Supreme Court. At this time, the cause was pending in the Supreme Court, on the appeal taken by Shannon. That appeal was irregular, as less than all the defendants in a joint decree cannot appeal without a summons and severance in the court below. And this was not done on Shannon's appeal.

The regular mode of proceeding would have been to dismiss the appeal in this court, pray for another appeal in the court below, and for a summons and severance, so that the defendants desirous of an appeal might take it, without the concurrance of those defendants who were opposed to it. Had the appeal been prayed in open court, and entered upon the record, the judge below might well have refused it, as the legal steps for its allowance were not taken. Under such circumstances, it was the duty of the judge to act in the presence of the opposing counsel. (Owings et al. v. Kincannon, 7 Peters, 399; Todd et al. v. Daniel, 16 Peters, 521.)

Whether an application might not have been made to this court to correct the irregularity of the appeal, is not before us under the rule for the mandamus. The writ is refused.