Perkins v. Fourniquet (47 U.S. 206)

by Roger B. Taney

United States Supreme Court

47 U.S. 206

Perkins  v.  Fourniquet

THIS was an appeal from the Circuit Court of the United States for the District of Louisiana, the circumstances of which are stated in the opinion of the court.

Mr. Henderson and Mr. Fendall moved to dismiss it, for want of jurisdiction, because the decree of the Circuit Court was not a final decree. The motion was opposed by Mr. Mayer and Mr. Coxe.

Mr. Henderson, in support of the motion.

The record shows that the appeal taken in this case is upon an interlocutory decree to account, and before any account taken or any final decree made.

The appellees move to dismiss the case, for the reason, that in this state of the record this court has no jurisdiction. Appeal only lies from a 'final decree.' Act of 1789, sec. 22; 9 Peters, 1-3; 2 Howard, 64.

It seems this court, in the case of Michoud et al. v. Girod, 4 Howard, 534-537, did entertain an appeal from an interlocutory decree, but the fact, it is presumed, escaped notice. The like omission is noticed as having occurred in the case of the Washington Bridge Co. v. Stewart; but the court say, had the defect been noticed the appeal would have been dismissed. 3 Howard, 424. The appeal in this case, being now shown to be prematurely taken, will of course be dismissed.

Mr. Mayer and Mr. Coxe, against the motion, referred to and commented upon the cases in 4 Howard, 524; 3 Howard, 424; 3 Cranch, 179; 4 Cranch, 216; 10 Wheat. 503, in which last the court review the former cases.

Mr. Fendall, in support of the motion, cited and remarked upon the following authorities:-Judiciary Act, 24 September, 1789, sec. 22, 1 Statutes at Large, 60; Canter v. American Insurance Company, 3 Peters, 318; Rutherford v. Fisher, 4 Dall. 22; Young v. Grundy, 6 Cranch, 51; Houston v. Moore, 3 Wheat. 433; Gibbons v. Ogden, 6 ib. 448; The Palmyra, 10 ib. 502; Weston v. City of Charleston, 2 Peters, 464, 465; Boyle v. Zacharie and Turner, 6 ib. 648; Brown v. Swann, 9 ib. 1; Young et al. v. Smith, 15 ib. 287; McCollum v. Eager, 2 Howard, 61; Pepper et al. v. Dunlap, 5 ib. 51; Mayberry v. Thompson, 5 ib. 126; Clagett v. Crawford, 12 Gill & Johns. 275.

Mr. Chief Justice TANEY delivered the opinion of the court.

Notes