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BIGLER V. WALLER, 79 U. S. 142 (1870)

U.S. Supreme Court

Bigler v. Waller, 79 U.S. 12 Wall. 142 142 (1870)

Bigler v. Waller

79 U.S. (12 Wall.) 142


On a bill filed in the Circuit Court for Virginia against A. and B., the administrators of both were substituted on the record as defendants, A. and B. themselves having died after the bill was filed, and suggestion of their deaths being made. In this state, the cause was heard and judgment given for the defendants. The complainant appealed to this Court, the appeal bond and the citation referring, however, throughout, to A. and B. as defendants in the case, and not referring in any way to their suggested deaths and the substitution of their administrators. J. A. I., signing himself "counsel for the defendants in this cause in the Circuit Court of the United States for Virginia," acknowledged service of the citation.

On motion in this Court to dismiss, the court acknowledging the obvious irregularity of both bond and citation, yet held

1. That the acceptance by the counsel, J. A. I., in the circumstantial language above quoted was a waiver of the irregularity in the citation.

2. That the irregularity as respected the bond did not necessarily exact a dismissal, which was accordingly ordered, only unless the appellant filed a sufficient appeal bond, in the usual form, within ten days, in the same sum as that required on the allowance of the appeal.

James Bigler filed a bill in the court below against William Waller and Robert Saunders. Pending the suit, Saunders died, and his death being suggested, a scire facias to revive the cause was issued and returned executed on one Harrell,

Page 79 U. S. 143

his administrator. The death of the defendant, Waller, was also afterwards suggested, and one W. G. Waller, administrator on his estate, moved for leave to appear and defend the suit. The court, accordingly, on the 3d of June, 1870, ordered that the suit should proceed against the said Harrell, and the said W. G. Waller, administrators, as already mentioned. In this state of the cause, it was heard and a decree given that Bigler, the complainant, pay to the said W. G. Waller, administrator of William Waller, a sum of money specified, and to the several defendants their costs. From that decree Bigler took an appeal to this Court, the appeal being taken in assumed conformity to the second section of the Judiciary Act, which gives an appeal from the circuit court to this Court, "the citation being signed by a judge, &c., and the adverse party having at least thirty days' notice." And which further says:

"And every justice or judge signing a citation, &c., shall take good and sufficient security that the plaintiff in error shall prosecute his writ."

By the already mentioned Judiciary or other acts of Congress, the appeal, if taken within a time limited (security being given in like manner), operates as a supersedeas. Prefixed to the appeal bond which Bigler, the appellant, gave in this case were these words


"James Bigler"


"William Waller and Robert Saunders"

"Bond on appeal"

The bond itself purported to be "given to the above-named William Waller and Robert Saunders in the sum of $20,000," and was with a condition, reciting that

"the above-named James Bigler had prosecuted an appeal to the Supreme Court of the United States to reverse the decree rendered in the above entitled suit by the Supreme Court of the United States."


Page 79 U. S. 144

condition of the bond was, that "the above-named James Bigler shall prosecute his said appeal to effect, and answer all damages and costs if he shall fail to make good his plea."

The citation was directed "to William Waller and Robert Saunders," and imported that they were to appear pursuant to an appeal "wherein James Bigler is plaintiff and you are defendants." On the citation was this endorsement:

"I hereby acknowledge service of the within citation."


"Counsel for the defendants in this cause in the"

"circuit court of the United States for the"

"District of Virginia"

In this Court, the appearance had been special.

Page 79 U. S. 145

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