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RAILROAD COMPANY V. BRADLEYS, 74 U. S. 575 (1868)
U.S. Supreme Court
Railroad Company v. Bradleys, 74 U.S. 7 Wall. 575 575 (1868)
Railroad Company v. Bradleys
74 U.S. (7 Wall.) 575
MOTIONS TO DISMISS AND FOR SUPERSEDEAS ON APPEAL
FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
1. A decree ordering an injunction, previously granted to restrain a sale under a deed of trust, to be dissolved and directing a sale according to the deed of trust, and the bringing of the proceeds into court, held to be a final decree.
2. An actual allowance of an appeal may be inferred where the record shows that an appeal was prayed for in open court and an appeal bond filed and approved by one of the judges.
3. A supersedeas granted, the record showing that a decree dissolving an injunction was made on the 6th of February, a petition for the suspension of the order filed by one party on the same day, by another on the 15th, a petition to open the decree on the 13th; a motion to rescind, made on the 6th March, during the term at which the decree was rendered, which motion was heard and denied on the 13th, with an appeal prayed in open court on the 20th, and an appeal bond filed on the 23d.
The Washington, Georgetown & Alexandria Railroad Company had filed, in 1863, a bill to enjoin the City of Washington and J. and A. Bradley, trustees, from making sale of certain property conveyed by the company in mortgage to the said Bradleys as trustees, and under which the Bradleys were about to sell the property to pay the mortgage debt. An injunction was accordingly granted. But after various proceedings on both sides, a decree was entered on the 6th of February, 1869, which ordered that the injunction be dissolved and directed a sale by the Bradleys, the trustees of the property in controversy, according to the deed of trust, and the bringing of the proceeds into court to abide further orders.
From this decree an appeal was prayed in open court by the railroad company, and subsequently an appeal bond was filed in the court and approved by one of the judges. But it did not appear directly that an appeal was allowed.
As already stated, the decree dissolving the injunction and directing a sale was entered on the 6th of February, 1869. A petition for the suspension of this order of dissolution was filed by the secretary of the railroad company on the same day; a motion to the same effect was made in behalf of the Department of War on the 15th of February, and a petition to open the decree was filed on the 13th of February by one of the stockholders of the company.
On the 6th of March and during the term at which the decree was rendered, a motion to rescind was made in behalf of the railroad company, and on the 13th of that month was heard and denied.
On the 20th, the appeal was prayed by the railroad company, and on the 23d the bond of appeal was approved and filed.
Upon this state of facts, two motions were now made in this Court -- one, in behalf of the appellees, to dismiss the cause for want of jurisdiction; the other, in behalf of the appellants, for a supersedeas.
In support of the motion to dismiss, it was urged,
First that the decree appealed from was not final, and,
Secondly that there was no allowance of appeal.
In support of the motion for supersedeas, that the appeal bond was approved and filed within ten days after the decree.
THE CHIEF JUSTICE delivered the opinion of the Court.
We think that the decree entered on the 6th of February, 1869, was a final decree within the principles of the case of Thomson v. Dean, [Footnote 1] decided at this term, though it might have been otherwise had the decree been limited to the dissolution of the injunction, thereby merely permitting the trustees to sell under their trust.
The first ground of the motion to dismiss therefore cannot be sustained.
Nor is the second ground more tenable. It is true that it does not appear upon the record directly that there was an allowance of the appeal; but an appeal was prayed, and subsequently the appeal bond was filed in the court and approved by one of the judges, and we think it may be properly inferred from these facts that an appeal was actually allowed. The motion to dismiss therefore must be denied.
In support of the motion for supersedeas, it was argued that the appeal bond was approved, and filed within ten days after the decree.
The decree was entered on the 6th of February, 1869. A petition for the suspension of the order of dissolution was filed by the secretary of the complainants on the same day, a motion to the same effect was made in behalf of the Department of War on the 15th of February, and a petition to open the decree was filed on the 13th of February by one of the stockholders of the company.
We do not think it necessary to consider the effect of either of these proceedings, for on the 6th of March, and, as we understand, during the term at which the decree was
rendered, a motion to rescind was made in behalf of the complainants and was heard and decided.
There is no doubt that during the term, the decree was at all times subject to be rescinded or modified upon motion, and could not therefore be regarded as absolutely final until the end of the term. It became final in this case when the motion to rescind had been heard and denied. This took place on the 13th of March, and on the 20th the appeal was prayed in open court, and on the 23d the bond of appeal was approved and filed.
We think this was in time, and the motion for supersedeas must therefore be allowed. [Footnote 2]
Supra, p. <|74 U.S. 342|>342.
Brockett v. Brockett, 2 How. 240.
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