
    Powell M. Bradley et al. vs. William M. Galt and Robert C. Hewett.
    Law.
    23,552.
    Decided November 29, 1886.
    The Chief Justice and Justices Cox and Meeeick sitting.
    On an appeal from this court to the Supreme Court of the United States after a supersedeas bond has been accepted, either in court or by a justice in chambers, the jurisdiction of this court and the power of the justice over the subject becomes exhausted; consequently any subsequent order increasing the penalty of the bond is a nullity, and the bond given in pursuance of such order is inoperative and void.
    Action on an appeal bond.
    The trial resulted in a verdict and judgment against the defendants, two of the sureties.
    This case came to the General Term upon numerous exceptions to the rulings of the court below. The only question, however, which is considered in the opinion is the refusal of the justice trying the case to grant a prayer of the defendants embodying the proposition of law stated in the head note. The facts upon this point appear in the opinion.
    W. D. Davidge, A. 0. Bradley and Reginald Pendall for plaintiffs.
    It is submitted that even if it be true that Mr. Justice Humphreys was deprived of all further power or jurisdiction over the appeal or the security by the approval of the Herr bond, yet the additional bond, given by the defendants, is good and valid as a voluntary bond. Daniels vs. Tearney, 102 U. S., 415.
    
      But Justice Humphreys did not empty himself of all power or jurisdiction by the approval of the Herr bond. The appeal was taken to the Supreme Court of the United States in open court June 19, 1877. The General Term adjourned on the 26th of June, 1877, and there was no further term of • said court until September 24th, 1877, when the September term of that court commenced. The Herr bond was approved July 20, 1877, after the term. No citation was issued.
    The bond offered was intended to operate as a supersedeas, and its penalty was wholly inadequate. It was the duty of the justice taking the security to take it in sufficient amount to cover the whole amount of the decree. See Buie 29, S. C. U. S.; Stafford vs. Union Bank, 16 How., 135 ; Jerome vs. McCarter, 21 Wall., 30.
    On July 25, 1877, when the attention of the justice was called to the matter, and he passed the order increasing the penalty to $20,000, and on August 1,1877, when he accepted both bonds, as in compliance with the order, no citation had been issued, the cause had not been docketed in the Supreme Court of the United States, and he was not divested of the power and authority to compel the giving of.sufficient security.
    Where an appeal is taken in open court, and the appeal bond is approved during the term, no citation is necessary ; but if the bond is approved after the term has passed there must be a citation; and until then, or until it is docketed in the Supreme Court, the case is not transferred to the appellate court, so as to divest the judge of the court below of his power or control over the security. Alviso vs. United States, 5 Wall., 824; Sage vs. B. B. Co., 96 U. S., 712; National Bank vs. Omaha, 96 U. S., 737; Draper vs. Davis, 102 U. S., 370; Brandies vs. Cochrane, 105 U. S., 262 ; Hewitt vs. Filbert, 116 U. S., 142.
    Nath’l Wilson, Wm. F. Mattingly and Wm. A. Cook, for defendants.
    The decree of the Court in General Term, allowing the appeal prayed for, was a sufficient and effective adjudication of appeal. Edmonson vs. Bloomshire, 7 Wall., 311.
    
      During tbe term at which the decree was rendered, the court had power to make or amend it; but on the adjournment of the court, on the 26th of June, the decree became absolute, and the case was no longer within the jurisdiction of this court. Goddard vs. Ordway, 101 U. S., 745 ; Peugh vs. Davis, 110 U. S., 227; Hewitt vs. Filbert, 116 U. S., 142.
    The appeal having been judicially allowed, the approval of the Herr bond superseded the decree appealed from. After the date of the approval, July 20, 1877, this court had no power over the appeal, noi; had any of its justices power over the supersedeas which resulted from the approval of the bond.
    At the time Mr. Justice Humphreys ordered an increase of the penalty of the bond which was then operating and which continued to operate effectively to supersede the decree, he was functus officio. He had executed and exhausted the authority conferred upon him by the statute and Rule 29 of the Supreme Court. Draper vs. Davis, 102 U. S., 370 ; Keyser vs. Farr, 105 H. S., 265 ; Butchers’ Ass’n vs. Slaughter-House Co., 1 Woods, 50; U. S. vs. Alexander, 110 U. S., 325.
    The appeal having been allowed and the supersedeas bond approved, the case was thenceforth within the jurisdiction of the Supreme Court of the United States.
    It was urged, in the court below, that the Supreme Court of the United States could not acquire jurisdiction except by the issue of a citation under the rule prescribed in R. R. Co. vs. Blair, 100 U. S., 661, and the filing of the record in the office of the clerk of the Supreme Court.
    The issue of a citation and the docketing of the case in the Supreme. Court relate only to the procedure under the appeal. They are not jurisdictional facts ; they relate only to modes of procedure in the appellate court, and are under the control of that court. Edwards vs. U. S., 102 U. S., 577 ; Peugh vs. Davis, 110 U. S., 227; Dodge vs. Knowles, 114 U. S., 438.
    The rule laid down in Draper vs. Davis, 102 U. S.5 370, that, after a bond has been accepted by one of the justices in accordance with a judicial allowance of appeal, the jurisdiction is thereby transferred, is not in any way affected by the issue or non-issue of a citation, or the filing or failure to file the record.
    The failure to file the record is merely the abandonment of the appeal. Keyser vs. Farr, 105 U. S., 265.
    The order of Mr. Justice Humphreys having been without authority of law, the bond is void. Ins. Go. vs. Hosmer, 1 Mackey, 297.
   Mr. Justice Cox

delivered the opinion of the court.

This is an action on an appeal bond executed by the defendants, with Mark Young as principal, given in the case of Bradley and others against Mark Young and others, No. 3153 in equity.

In that case a decree was rendered on the 19th of June, 1877, against the defendant, Mark Young, for the payment of a sum of money exceeding $10,000, and also giving other relief specifically. On the 20th of July, 1877, after the expiration of the term, a supersedeas bond, conditioned in the usual form of supersedeas bonds, to answer all damages as well as costs, was tendered to Mr. Justice Humphreys, executed by Mark Young and Abraham H. Herr, in a penalty of $5,000, which bond was approved and was filed on the 20th of July, 1877. On the 24th of July, 1877, notice was given of a motion to vacate the approval of this bond, and on the next day Mr. Justice Humphreys, at chambers, passed the following order :

“Ordered, this 25th day of July, 1877, that the penalty of the appeal bond in this case be increased to $20,000, within ten days from the date hereof.”

The bond upon which this suit was brought was then executed under this order of Mr. Justice Humphreys, in the additional sum of $15,000, and purported to be signed and executed by Mark Young, B. C. Hewett, S. C. McDowell and W. M. Galt, and on the first of August, 1877, it was approved by Mr.-Justice Humphreys and filed.

The original case went to the Supreme Court, and the defendant, Young, failing to prosecute his appeal with effect, this action was brought against two of the sureties, it turning out that one of them, McDowell, never, in fact, signed the bond, and that his signature was either forged or put there without authority.

There are several defences to the action.

One is, that after the first appeal bond was approved and filed, the powers of the justice over this subject had been exhausted, as the case had then been transferred by appeal to the Supreme Court, and was thenceforth within the jurisdiction of that court, and any proceeding in the court below, or by a justice at chambers, was a mere nullity, and consequently the bond itself is inoperative and void.

In order to appreciate this defence, it becomes necessary to ascertain in what stage of a case it is transferred, by appeal, to the Supreme Court, so that that court can determine any question thereafter arising, especially such a question as the sufficiency of an appeal bond which results in supersedeas of the decree rendered below. As this is a question of practice, we are to consult the decisions of the Supreme Court on this subject. Going back to 16 Howard, at page 135, we find the case of Stafford vs. Union Bank of La.

In that case an appeal was taken from a decree of the District Court of Texas, pending a term of the Supreme Court. The district judge had taken an insufficient bond. In the court below, a motion had been made to rescind the allowance of appeal, because the security was insufficient for a supersedeas. The motion in the Supreme Court was, first, for a procedendo commanding the district judge to execute the decree, and, also, to dismiss the appeal. The Supreme Court overruled both of these motions, but suggested, as a proper remedy for the difficulty, a mandamus to the judge below, to be applied for on motion, commanding him to execute the decree. A mandamus was applied for, and that came before the court in the same case in 11 Howard, 215. A mandamus was issued to the district judge, and he made a return that he had taken a bond, and so forth, and the case was removed from his court, and he had no longer jurisdiction to make any order in the cause. The Supreme Court says:

“It was the duty of the judge, in allowing the appeal, to take security on the appeal in the sum decreed, and not having done so, the appellant was not entitled to a supersedeas of any process necessary to carry the decree into effect, and the judge was bound to issue it upon the application of the plaintiff. The court therefore orders that a peremptory mandamus issue commanding the judge forthwith to carry the decree into effect.”

It will be observed here that the court does not intimate that upon the failure of the judge to take a proper appeal bond in the first instance, a further application should be made to him to order a new bond; but they themselves undertake to direct the execution of the decree in default of a proper supersedeas bond.

In the case of Ex parte Milwaukee R. R. Co., 5 Wall., 188, a decree was rendered for the sale of mortgaged property. An appeal was prayed and allowed. The. district judge below, however, refused to apjrrove the bond tendered to him, the sureties of which were not residents; so that the only proceeding in the case, and the one brought to the Supreme Court, was the appeal and the allowance. Then a motion was made in the Supreme Court for a mandamus to compel the district judge to approve the bond and allow a supersedeas. The court in that case said:

“ The case being properly in this court by appeal (there being nothing but the appeal and the allowance), we have, by the fourteenth section of the Judiciary Act, a right to issue any writ which may be necessary to render our appellate jurisdiction effectual.”

Thereupon, doubting whether they had a right to issue a mandamus, and thereby control the discretion of the district judge as to approving the bond, they ordered a supersedeas on the filing of a proper bond within thirty days.

The next case to be referred to is that of the Rubber Co. vs. Goodyear, 6 Wall., 156. In that case a motion was made to reduce the penalty of an appeal bond. The court says:

“ In equitg cases the appellate jurisdiction of this court attaches ■upon the allowance of the appeal. * * * The question of sufficiency (of the appeal bond) must be determined in the first instance by the judge who signs the citation, but after the alloioance of the appeal, this question, as well as every other in the cause, becomes cognizable here.”

In the case of Edmonson vs. Bloomshire, I Wall., 306, the appeal was not followed up by filing the record at the term to which-it was prayed; and it being filed at a subsequent term, the court, of its own motion, dismissed the appeal for want of jurisdiction, and said :

The prayer for the appeal and the order alloiuing it constituted a valid appeal. The bond was not essential to it. It could have been given here. * * * The bond may be given with effect at any time while the appeal is alive.”

Of course every appeal expires with the term to which it is prayed.

The next case is found in 12 Wall., 86, that of French vs. Shoemaker. That was a case of a motion to dismiss an appeal because the bond was insufficient to operate as a supersedeas, and on the other hand a motion was made for a supersedeas. The court says:

“ What is necessary is, that it (the bond) be sufficient, and when it is desired to make the appeal a supersedeas, that it be filed within ten days from the rendering of the decree ; and the question of sufficiency must be determined in the first instance by the judge who signs the citation, but after the allowance of the appeal, that question, as well as every other in the cause, beco mes cognizable here. It is, therefore, matter of discretion with the court (here) to increase or diminish the amount of the bond and to require additional sureties or otherwise, as justice may require.”

It has been urged in argument that the citation of the judge below is necessary to transfer the case to the Supreme Court so as to give it jurisdiction over further proceedings in the case. Some language rather looking in that direction was used by the court in one or two cases. In 96 U. S., 712, the case of Sage vs. R. R, Co., a supersedeas writ had been rejected by the court below, but bonds were afterwards approved in vacation. A motion was made in the Supreme Court to vacate the supersedeas. There the court said :

“Whenever, therefore, security for an appeal is accepted during the term, an appeal is allowed. If the security is taken out of court, and after the term, a citation should be issued to bring in the parties, unless they voluntarily appear ; for until the security has been accepted the allowance of the appeal cannot be said to have been perfected. Wlmever can sign a citation may allow an appeal.”

In the case of the First Nat. Bank vs. Omaha, in the same volume at page 737, the court says:

“We have decided at the present term in Sage vs. R. R. Co., that even though an appeal is asked for in open court, if the security is not taken until after the term, a citation should be issued.’ ”

These cases are explained, and the proposition apparently approved is modified in subsequent cases. Thus, in the case of Peugh vs. Navis, 110 U. S., 227, it appears that a decree had been rendered on the 30th of October, 1882. An appeal was prayed and allowed, but no bond was filed until May, 1883, and then Mr. Justice Miller granted a supersedeas, took security and signed a citation. In the Supreme Court a motion was made to vacate the supersedeas because no appeal was perfected in sixty days, and the court said:

“In Edmonson vs. Bloomshire, 7 Wall., 307, it was decided that a prayer for an appeal made in open court and an order allowing it constituted a valid appeal. Under such circumstances the allowance becomes the judicial act of the court in session, and the bond is not essential to the talcing of the appeal, though it may be to its prosecution. * * * We decided in R. R. Co. vs. Blair, 100 U. 661, that if an appeal was allowed by the court during the term at which the decree was entered, and the bond was not executed until after the term, a citation was necessary; but that related only to procedure under the appeal and is not in conflict with the former decisions as to the effect of an allowance of an appeal by the judicial act of the court in session.”

Again, in Dodge vs. Knowles, 114 U. S., 430, 438, where it appeared that the final decree was rendered on the 23d of February, 1881, and appeal was prayed and allowed and security was not taken until November, 1881, after the expiration of the term, and there was no citation at all, but the appeal was docketed in the Supreme Court on the 11th of November, 1881, and a motion was made to dismiss the appeal, the court said:

Th.e allowance of the appeal by the court while in session at the term in which the decree was rendered constituted a valid appeal,-of which the appellee was bound in law to take notice. The docketing of the cause in time perfected the jurisdiction of this court.
The giving of a bond was not essential to the taking, though it was to the due prosecution of the appeal. It was furnished and accepted in this case before the cause was docketed here. Had this not been done, we would have given the appellants leave to supply the omission before dismissing the appeal. All this "was decided on full consideration in Peugh vs. Davis, 110 U. S., 227. It has also been decided that if an appeal was allowed in open court during the term in which the decree was rendered, a citation was required as matter of procedure if the security was not furnished until after the term. . But in R. R. Co. vs. Blair, 100 U. S., 662, it was said: ‘Still an appeal, otherwise regular, would not probably be dismissed absolutely for want of a citation if it appeared by clear and unmistakable evidence outside of the record that the allowance was made in open court at the proper term, and that the appellee had actual notice of what had been done.’ The citation is intended as Dotice. * * * The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for due prosecution of the appeal. The, citation, if security is taken out of court, * * * is necessary only to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security. It is not jurisdictional. * * * If by accident it has been omitted, a motion to dismiss * * * will never be granted until opportunity to give the requisite notice has been furnished. * * * Here, before the case came on for final hearing, notice was given the appellee,” etc., etc.

The same language in substance is repeated in the case of Hewitt vs. Filbert, 116 U. S., 142. The summing up under this head is:

First. The allowance of the appeal makes it a valid one, and the appellate jurisdiction of the Supreme Court attaches upon said allowance.

Second. A citation is not necessary to such jurisdiction where the appeal is prayed in open court.

Third. Even a bond is not necessary to the jurisdiction.

Fourth. The court or judge in vacation who accepts the security must determine on its sufficiency in the first instance, but after he has once done so, this question, and any other that may arise, is cognizable in the Supreme Court.

Fifth. A bond which is not sufficient for a supersedeas is nevertheless sufficient to sustain the appeal and prevent its dismissal, so as to leave the case within the jurisdiction of the appellate court.

The question then arises, Was the jurisdiction of the Supreme Court over the question of sufficiency exclusive ? The authorities to which I have referred have said that the question was cognizable in the Supreme Court after the appeal was made and was allowed. We can conceive a case to be in the Supreme Court and in this court, too, at the same time, for different purposes. It may be in the Supreme Court for the purpose of hearing an appeal from a decree which is not superseded by the appeal, and at the same time here for the purpose of executing the decree. But we cannot conceive a case to be there and here at the same time for the same purpose, so that each court may determine the same question; because if each court may determine the same question, it may execute its own decree, and they might execute conflicting decrees, which would be absurd. Whenever the point is reached that the Supreme Court has power to determine a question like this, then its power must be exclusive ; and this seems to be held in the case of Draper vs. Davis, 102 U. S., 370. There an appeal was prayed and allowed, and a bond in the sum of $1,000 was approved as a supersedeas bond, and the citation was signed by one judge. The same judge afterwards, becoming satisfied that the bond was insufficient, ordered an additional bond to be filed in penalty of $3,000, and such a bond was tendered to him and refused. Thereupon, a motion was made in the Supreme Court for a supersedeas. The court said:

“ When the original bond of $1,000 was accepted by the justice and the citation signed, an appeal was allowed and security taken which operated as a supersedeas. That transferred the jurisdiction of the suit appealed to this court. * * * The power of the justice over the appeal and the security, in the absence of fraud, was exhausted when he took the security and signed the citation. From that time the control of the supersedeas, as well as the appeal, was transferred to this court.”

Now, in the present case, the bond tendered in the sum of $5,000 was tendered as a supersedeas bond. It was approved and executed as such, and that constituted an allowance of a supersedeas by a judge, which arrested all further proceedings in the way of executing the decree until, at least, that proceeding should be reversed by appropriate judicial action. The only difference between that case and this is that there the judge had signed a citation.; but, as I have already shown, by the later cases, the signing of the citation was entirely unnecessary to the jurisdiction of the appellate court, but was merely a matter of procedure to bring the parties in.

A somewhat similar question was decided in the case of Keyser vs. Farr, 105 U. S., 265. There the appeal was allowed, and the bond fixed and record filed in the Supreme Court during the same term. Afterwards a motion was made in the court below for further security, and a motion made in the Supreme Court to restrain the court below. The court says:

“After the acceptance of the bonds for the appeal and the docketing of the cause in this court, the jurisdiction of the court below was gone. From that time the suit was cognizable only in this court.”

They had previously decided, in Goddard vs. Ordway, 101 U. S., 745, that the court below might, at the same term at which the appeal was allowed, vacate the allowance, but they'said in this case, the record having been carried up, then that power was gone, and the court below had exhausted its jurisdiction. They did recognize, as I have stated, the power of the court below to vacate a supersedeas during the same term at which it had been allowed, but they never recognized the power of a judge at chambers to vacate a supersedeas once allowed, either by the court or by himself.

Now, therefore, according to the clear ruling of the Supreme Court, after a supersedeas bond has been tendered and accepted, either in court or by a justice, the jurisdiction of the court has expired, except as before mentioned, during the same term, and the power of any justice over the subject is entirely exhausted, and no motion can be made except to the Supreme Court with reference to the sufficiency of a supersedeas bond after expiration of the term of the court below at which the decree was rendered.

It has been suggested, however, that although the justice had no jurisdiction over this subject, the bond which was tendered by the defendants might be treated as a voluntary bond, an obligation which they voluntarily assume, and which was none the less binding upon them; and the case has been likened to those cases in the books in which parties about to enter upon the duties of a public office are required to give bond, although the statute did not require any bond at all to be given. Such bonds have been held as binding, notwithstanding the omission of the law to require them to be given. There was such a case reported in 5 Peters, (U. S. vs. Tingey, 5 Pet., 115.) The language of the court there was, that it was incident to the powers that devolve upon the department by law, to exact bonds from officers charged with the custody of public funds of the United States, or having them specially in their custody, and there is no objection to them legally or morally; and the defendants, therefore, were held bound by such bond, notwithstanding the fact that no law provided for Uiem.

The difficulty in this case is that, according to the ruling of the Supreme Court, the justice here had no jurisdiction at all.

He had no right either to order or accept a supersedeas bond so as to give it any operation in the case at all. Having no authority to do this, the case must be looked at as if no acceptance had taken place, and no bond had been taken or approved; and in the abse.nce of such acceptance, there is an absence of what the law requires as to all sealed obligations, viz., a delivery. The bond was never delivered, so as to go into operation, at all.

In the case of Kountze vs. Omaha Hotel Co., 107 U. S., 378, it appeared that the court below had exacted a bond with a condition wider than the law authorized, and the Supreme Court held that the justice had no right to exact a bond in that form, and that, as to the excess, the bond was simply void. And so it seems to us here, that the judge had no authority to approve or accept the bond, and that the bond and the whole of the proceedings are a mere nullity. Of course, as this point is conclusive of the whole case, it is not necessary for the court to examine the other questions presented by counsel, however interesting .they may be, and we do not desire to commit ourselves upon them.

The result is, that the motion for a new trial must be sustained.  