73 F. 314 | 7th Cir. | 1896
This suit was brought by the Farmers’ Loan & Trust Company, as trustee, against the Chicago & Northern Pacific Railroad Company and others, to foreclose a mortgage upon the property of the latter company in Illinois. Beven holders of bonds secured by the mortgage were afterwards joined as co-plaintifis. The appellant, Daenell, a judgment creditor of the railroad company, was permitted to file an intervening petition, denying die validity of the mortgage on the ground that the trust company, complainant, was a foreign corporation, and not qualified to act as trustee in the mortgage. The attorney general of Illinois, also, was allowed to file an intervening petition; and two of the defendants, the Chicago & Northern Pacific Railroad Company and the Northern Pacific Railroad Company, filed pleas assailing the mortgage on the same ground. The petitions and pleas were heard together by Judge Jenkins, who onApril 3,1895, made an order overruling the pleas and dismissing the intervening petitions, each for want of equity. The facts are more fully stated in the opinion of ¡he court. 88 Fed. 412. On May 7, 1895, Daenell filed an assignment of error, and prayed.an appeal, whereupon it was ‘'ordered that said appeal be allowed upon the intervening petitioner, Louis Daenell, filing an appeal bond in the sum of five hundred dollars, with security to be approved by the court.” No oilier formal order allowing an appeal was entered. An appeal bond, approved by Judge Jenkins on September 5, was filed September 9, 189,5, and on that day a citation, made returnable on October 8, 1895, and signed by Judge Showalter, was issued, and on October 4, 1895, was served upon the Farmers’ Loan & Trust Company, and service on the railroad companies named was accepted by counsel. The terms of this court begin each year on the first Monday of October, which in 1895 was the 7th day of the month. The Farmers’ Loan & Trust Company alone, and appearing only for the purpose of making the motion, moved to dismiss the anpoal on the following grounds: (1) The order granting the appeal did not make
“The statute makes no provision, in terms, for the form of the allowance of an appeal. Rev. St. § 692. But as there can be no appeal without the taking of security, either for costs, or costs and damages, and this is to be done by the court, or a judge or justice, the acceptance of the security, if followed, when necessary, by the signing of a citation, is, in legal effect, the allowance of an appeal. * * * Until the security has been accepted, the allowance of an appeal cannot be said to have been perfected.” Sage v. Railroad Co., 96 U. S. 712, 714; Rev. St. § 1012. “The circuit judge, by taking the security and signing the citation, allowed an appeal. No formal order of allowance was necessary.” Brandies v. Cochrane, 105 U. S. 262. In this case the bond was approved on September 5th, was filed September 9th, and on that day the citation, returnable October 8th, was signed and issued, and on October 4th was served. An allowance of an appeal in this case was perfected, therefore, on September 9th, unless the fact that the citation was not signed by the same judge who approved the bond is material. In the case of Insurance Co. v. Mordecai, 21 How. 195, 202, Chief Justice Taney declared that the act of congress required the citation “to be issued by the judge or justice who allows the writ of error, and it cannot be legally issued by any other judge or court”; but the later cases indicate a more liberal construction of the statute, which provides, in terms (Rev. St. § 999), that the “citation shall be signed by a judge of such circuit court, or a justice o.f the supreme court”; and, while if is required by the next section that every judge or justice signing a citation on any writ of error shall take good and sufficient security for the prosecution of the writ or appeal, it does not follow, in our opinion, that when, in a given instance, a bond has been approved by one of the judges of the circuit court, another judge of that court, who might have granted the appeal and approved the bond, may not sign the citation. His signing thereof without requiring security is equivalent to an express approval by him of the bond already approved by the other judge. A citation, as has often been declared, is intended only for the purpose of notice, is not jurisdictional, and may
In West v. Irwin, 4 C. C. A. 401, 9 U. S. App. 547, to which reference has been made, the appeal was prayed ami granted on July 22d, and on the next day an appeal bond was approved and filed, but not until the ensuing October lOtli was a citation issued; and it was held to be ineffective, because there was no subsisting appeal. In this case the bond was filed and the citation issued on the same day, and on October 8th, the return day of the writ, as is shown by affidavit, the transcript of (he record was carried, at 5 o’clock p. m., io the door of the office of this clerk, to be filed, but, the office having been closed for the day, it was not filed until ¡he next day. The “thirty days” mentioned in the first, second, and seventh reasons stated in the motion to dismiss, it is to be noted, refer, if they can be said to have a definite commencement, to the order of May 7th, and no question is raised by the motion whether after September 9th, when there was a complete and effectual allowance of an appeal, timely and propel' steps to perfect the appeal were taken. Within 30 days after that date the transcript was filed, and, though not until one day beyond the return day of the citation, the default in that particular is sufficiently explained. See Chicago Dollar Directory Co. v. Chicago Directory Co., 13 C. C. A. 8, 65 Fed. 463. We therefore hold that the appeal should not be dismissed for either the first, second, fourth, fifth, seventh, or eighth reason slated in the motion. In respect to the other reasons, it is enough to say that there is no rule which requires the citation to be returnable on or before the first day of (he next ensuing term of this court; that, if the bond is defective for the reason suggested, the defect is curable; that the intervening petitions of the appellant and the attorney general of Illinois were separate and distinct, and no severance was necessary; and that it is not cause for dismissing the appeal Thai, as stated, “the record has not yet been printed, and no briefs have been filed.” It is not alleged that the appellant had failed to give the required undertaking for costs, or to pay to .the clerk the estimated cost and fees for printing the record, or to file a printed brief within 20 days after the date of the delivery by the clerk of the printed record. See miles 14, 23, 24, of this court. 11 C. C. A. lxxiv., lxxvi., lxxvii. The motion to dismiss is overruled.
