153 F. 240 | U.S. Circuit Court for the District of Eastern Louisiana | 1907
This is a suit on an appeal bond given in 1867- in favor of the government. The appeal was taken from a judgment in a common-law suit in the District Court. The Circuit Court, when its attention was called to the fact that the matter had been brought before it by appeal and not by writ of error, dismissed the appeal. The defendant then sued out a writ of error, on which nothing was done for 35 years, when the government filed the transcript and had the appeal dismissed on the writ of error.
This suit is now brought on the appeal bond. Under the decision in Saltmarsh v. Tuthill, 12 How. 387-389, 13 L. Ed. 1034, the proceedings by appeal in a common-law case were mere nullities. The plaintiff could have' sued out execution notwithstanding the granting of the appeal, and the appeal would unquestionably not have operated to restrain the execution of the judgment. I do not think that the appeal bond did, in law or in fact, restrain the government from executing the judgment it had obtained. There was no consideration for the appeal bond. It effected nothing in law, and the government had therefore-no right to sue upon it.
For these'reasons, I sustain the exception, on the ground that the appeal bond was a mere nullity, and dismiss the suit.
