Brockett v. Brockett (43 U.S. 238)

by Joseph Story

United States Supreme Court

43 U.S. 238

Brockett  v.  Brockett

THIS was an appeal from the chancery side of the Circuit Court of the United States for the District of Columbia.

The case was not reached in regular order, but a motion was made, under the rule, to dismiss the appeal under the following state of facts.

A final decree was pronounced in the court below on the 10th of May, 1843, from which an appeal was prayed. A petition to re-open the decree was filed during the term, and referred to a master, who reported on the 9th of June following. Upon his report the court refused to open its former decree, and from this refusal, as well as from the original decree, an appeal was prayed, in which all the parties joined. On the 15th of June, the bond was executed by three of the parties, not being all.

Jones and Brent moved to dismiss the appeal on the following grounds, and cited 8 Pet., 526.

1. For irregularity, on account of the failure of the appellants to give the proper appeal bond; the bond given having been executed by only a part of the defendants in the court below, and for other reasons in the record.

2. That notwithstanding said bond may be regular, the appeal ought to be dismissed as to that part taken from the refusal of the court below, to open the final decree made upon the 10th of May, 1843; the said refusal having been made in the discretion of the court below and not 'a final decree or order' from which an appeal can be taken.

3. That the parties are not named in the writ of error and citation.

Bradley and Neale opposed the motion.

The motion in this case is put upon two grounds. As to the first, the bond, it will be seen by reference to the record that a final decree was rendered on the 10th day of May, 1843, from which an appeal was prayed by all the parties.

During the same term a petition was filed by Robert Brockett to have that final decree opened for certain purposes. And the court referred it to the commissioner. The commissioner made his report, and on the 9th day of June, 1843, the same term still continuing, the court refused to open the final decree; and from this refusal, as also from the final decree of the 10th of May, an appeal was taken, and the court then directed the penalty of the bond. All the parties joined in this appeal also. The bond bears date the 15th June, 1843, and is executed by three of the parties in the decree, and by their sureties.

Under this state of facts the appellants maintain, First, That the bond was property given, and as the law requires.

The law requires that all should join in the appeal, but does not direct or require that they should all join in the bond. The whole object of the law in that respect is security. That is a question for the court below; if the security is sufficient, the bond is sufficient.

Second, The appeal was properly taken. The cause was not finally disposed of till the adjournment of the term. All judgments and decrees are under the control of the court during that period, and may be opened or revised.

The petition for the opening of the decree was addressed to the discretion of the court. The court entertained it. By this the effect of the final decree was suspended. Substantially the decree was not final until the 9th June, 1843.

That appeal was taken, as has been said, to the former decree, and it is clear the Circuit Court did not consider the former decree as final, because they did not direct the amount of the penalty in the bond.

A third point has been suggested as to the writ of error and the citation, and the case in 8 Peters is relied on. The answer is, no writ of error was necessary here, nor citation, because the appeal was taken in open court. The case does not apply.

The cases in 2 Pet., and 7 Id., do not apply. The appeals in these cases were taken by a part, only, of the parties. Besides, Mandeville's was a partnership case.

Mr. Justice STORY delivered the opinion of the court.

Notes