Buckingham v. McLean, 54 U.S. 150 (1852)
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Scribd Government DocsBuckingham v. McLean, 54 U.S. 150 (1852)
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Scribd Government Docs54 U.S.
150
13 How. 150
14 L.Ed. 91
JOHN S. BUCKINGHAM AND MARK BUCKINGHAM,
APPELLANTS,
v.
NATHANIEL C. McLEAN, ASSIGNEE IN BANKRUPTCY
OF
JOHN MAHARD, JR.
December Term, 1851
BEFORE this case was reached upon the docket, a motion was made to
dismiss it upon the ground that the appellee had not been served with a
citation, and also upon another ground, which is stated in the following
opinion of the court as pronounced by Mr. Justice McLean.
Mr. Justice McLEAN.
This is an appeal from the Circuit Court of the Ohio District, and a motion is
made to dismiss it on two grounds.
1. Because no citation has been issued.
2. 'Because the appeal is from the decree of 1848 and interlocutory decrees,
whereas all the matters contested by the appellants were finally adjudicated and
decreed at the November term, 1846, from which decree an appeal was taken
which was dismissed by this court, and no appeal has been since taken.'
At November term, 1846, a decree was entered against the appellants. In
January term, 1847, an appeal was prayed by them from that decree, which was
granted, and bond was given. But the appellants failing to file the record and
docket the cause in this court, as required by the rules, it was, on motion of the
appellee's counsel docketed and dismissed at December term, 1847. At the
same term a motion was made to reinstate the cause upon the docket, which
motion was overruled.
Afterward, at October term, 1849, the appellants prayed an appeal from the
final decree made at the November term, 1848, which was granted, and that is
the appeal which is now pending.
It seems that no notice of this appeal has been served on the appellee, and on
that ground the motion to dismiss is made. A general appearance was entered
by the counsel for the appellee at December term, 1850, but the motion to
dismiss was not filed until February, 1852. In the case of McDonough v.
Millaudon, 3 How. 707, a motion was made to dismiss the cause on the ground
that the clerk of the Supreme Court of Louisiana issued the writ of error, and
signed the citation; and the court said, 'this case has been here for two terms; a
writ of certiorari has been sent down, at the instance of the defendant in error,
in whose behalf the motion is made, to complete the record; he now moves to
dismiss for the first time, and we think he comes too late.'
The object of a citation on a writ of error or an appeal is to give notice of the
removal of the cause, and such notice may be waived by entering a general
appearance by counsel. Where an appearance is entered, the objection that
notice has not been given is a mere technicality, and the party availing himself
of it, should, at the first term he appears, give notice of the motion to dismiss,
and that his appearance is entered for that purpose. A delay to give this notice
may throw the other party off his guard, until the limitation of the writ of error
or the appeal may have expired. In this case we think the motion is made too
late.
The record appeal was regularly taken and perfected. By this appeal all the
questions are brought before us, which were decided to the prejudice of the
appellants. From the nature of the controversy until the final decree was
entered, as between all the parties, the case could not, properly, be brought
before this court. The motion to dismiss is overruled.
When the case was called in its regular order, it was argued, and the following
is a report of it.
