Seymour v. Freer

The CHIEF JUSTICE

delivered the opinion of the court.

We think that for the purposes of appeal this decree must be regarded as having been passed on the 20th, and that the bond was filed in time.

Hut if this were otherwise, and through' mistake or accident no bond, or a defective bond, had been filed, this eourtwould not .dismiss the ap.pea.1, 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. Security for prosecution should be taken by the judge on signing the. citation; but if this duty be omitted or defectively performed, a remedy can be applied here on motion.

In the present case a bond, admitted, to be sufficient for costs of prosecution, whether given in time'to'make appeal operate as a supersedeas or not, -was filed in the court below before removal to this court.

The motion to dismiss the appeal must therefore be

Denied.

* Brobst v. Brobst, 2 Wallace, 96.