The Protector (79 U.S. 700)

by Salmon P. Chase

United States Supreme Court

79 U.S. 700

The Protector

APPEAL from the Circuit Court of the United States for the District of Louisiana.

This was a motion by Mr. P. Phillips to dismiss an appeal from a decree of the Circuit Court of the United States in the Southern District of Alabama. A motion to dismiss an appeal from the same decree, for the reason that it was not brought within one year from the passage of the act of March 2d, 1867, ^[1] had been made and denied at the December Term, 1869. ^[2] The appeal was subsequently dismissed on another ground. ^[3] The ground of this present motion was that more than five years, excluding the time of the rebellion, elapsed after the rendering of the decree, before the appeal was brought.

By the act of 1789, it is provided that writs of error shall not be brought but within five years from the rendering or passing the judgment or decree complained of. By the act of 1803, appeals from decrees were allowed, subject to the same reles, regulations, and restrictions as writs of error. ^[4] As a writ of error is not brought ^[5] until it is filed in the court where the judgment was rendered, so an appeal, as this court considers, is not brought until it is rendered or filed in the same way.

The decree in this case was rendered on the 5th of April, 1861, and the present appeal was allowed on the 6th of May, 1871, and filed in the clerk's office of the proper court, or brought, on the 17th of May, 1871.

In Hanger v. Abbott ^[6] it was held that the statute of limitations did not run, during the rebellion, against citizens of States adhering to the national government having demands against citizens of the insurgent States. And the question of course was whether, making allowance for the suspension of time produced by the rebellion, the appeal was or was not in season.

Mr. Phillips contended that it was not; Mr. F. S. Blount, contra, urging that it was.

The CHIEF JUSTICE delivered the opinion of the court.

Notes

1. 14 Stat. at Large, 545.
2. 9 Wallace, 689.
3. 11 Id. 82.
4. 2 Stat. at Large, 244.
5. Brooks v. Norris, 11 Howard, 204.
6. 6 Wallace, 532; The Protector, 9 Id. 659.