Green v. City of Lynn

First Circuit

Green v. City of Lynn

87 F. 839, 31 C.C.A. 248, 1898 U.S. App. LEXIS 2036

CourtCourt of Appeals for the First Circuit

DecidedApril 1, 1898

DocketNo. 240

StatusPublished

Cited by12 cases

This text of 87 F. 839 (Green v. City of Lynn) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Green v. City of Lynn, 87 F. 839, 31 C.C.A. 248, 1898 U.S. App. LEXIS 2036 (1st Cir. 1898).

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Opinion

PER CURIAM.

We are of the opinion that this appeal was not taken within six months after the entry of the decree sought to be reviewed, as required by the act of March 3, 1891 (26 Stat. 829, c. 517, § 11), and that for this reason we have no jurisdiction thereof. The date of the entry of the decree in the circuit court was February [840]*84024,1897. The six-months period expired August 24, 1897. The petition for an appeal, with the assignment of errors, was filed in the office of the clerk of the circuit court August 17, 1897. Nothing further was done within the six-months period. December 11, 1897, the following indorsement was made upon the petition: “Memorandum. This appeal is allowed, although I doubt whether it was seasonably perfected. W. L. Putnam, U. S. Circuit Judge.” On the same day Judge Putnam signed a citation dated December 11, 1897, and approved an appeal bond dated November 2, 1897.

In Barrel v. Transportation Co., 3 Wall. 424, a petition for an appeal had been filed in due time in the office of the clerk of the circuit court. Nevertheless the court said:

“Tlie filing of it in the clerk’s office, even if it could be regarded as addressed to tlie circuit court, would be of no avail, unless accompanied by an allowance of an appeal by that court.”

See, also, Pierce v. Cox, 9 Wall. 786.

Though the supreme court has often said that signing a citation or approving a bond is equivalent in law to the allowance of an appeal, it has never said, so far as we can discover, that an allowance in some form could be dispensed with, nor intimated that the limitation of time could be disregarded, and allowance made after its expiration be effectual. The act of March 3, 1891, by its provisions recognizes the necessity for an allowance; and the uniform practice of filing both the petition and the allowance before the expiration of the statutory period seems to be in accordance with the views of the supreme court as to the essential requirements which must be complied with before an appeal can be said to be “taken.” In Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, it is said:

“And so, when a cross appeal is allowed by a justice of tbis court, tbe petition and order of allowance must be filed in tlie court below, in order to tlie due taking of the cross appeal, under the statute.”

See, also, Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 261, 9 Sup. Ct. 107; Edmonson v. Bloomshire, 7 Wall. 306; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493; Brooks v. Norris, 11 How. 204; The Dos Hermanos, 10 Wheat. 306; Seymour v. Freer, 5 Wall. 822; Yeaton v. Lenox, 7 Pet. 220; The Enterprise, 2 Curt. 317, Fed. Cas. No. 4,497; Warner v. Railway Co., 4 C. C. A. 670, 54 Fed. 920, 922.

The appeal is dismissed, and the costs of this court are adjudged to the appellee.

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PER CURIAM.

We are of the opinion that this appeal was not taken within six months after the entry of the decree sought to be reviewed, as required by the act of March 3, 1891 (26 Stat. 829, c. 517, § 11), and that for this reason we have no jurisdiction thereof. The date of the entry of the decree in the circuit court was February [840]*84024,1897. The six-months period expired August 24, 1897. The petition for an appeal, with the assignment of errors, was filed in the office of the clerk of the circuit court August 17, 1897. Nothing further was done within the six-months period. December 11, 1897, the following indorsement was made upon the petition: “Memorandum. This appeal is allowed, although I doubt whether it was seasonably perfected. W. L. Putnam, U. S. Circuit Judge.” On the same day Judge Putnam signed a citation dated December 11, 1897, and approved an appeal bond dated November 2, 1897.

In Barrel v. Transportation Co., 3 Wall. 424, a petition for an appeal had been filed in due time in the office of the clerk of the circuit court. Nevertheless the court said:

“Tlie filing of it in the clerk’s office, even if it could be regarded as addressed to tlie circuit court, would be of no avail, unless accompanied by an allowance of an appeal by that court.”

See, also, Pierce v. Cox, 9 Wall. 786.

Though the supreme court has often said that signing a citation or approving a bond is equivalent in law to the allowance of an appeal, it has never said, so far as we can discover, that an allowance in some form could be dispensed with, nor intimated that the limitation of time could be disregarded, and allowance made after its expiration be effectual. The act of March 3, 1891, by its provisions recognizes the necessity for an allowance; and the uniform practice of filing both the petition and the allowance before the expiration of the statutory period seems to be in accordance with the views of the supreme court as to the essential requirements which must be complied with before an appeal can be said to be “taken.” In Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, it is said:

“And so, when a cross appeal is allowed by a justice of tbis court, tbe petition and order of allowance must be filed in tlie court below, in order to tlie due taking of the cross appeal, under the statute.”

See, also, Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 261, 9 Sup. Ct. 107; Edmonson v. Bloomshire, 7 Wall. 306; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493; Brooks v. Norris, 11 How. 204; The Dos Hermanos, 10 Wheat. 306; Seymour v. Freer, 5 Wall. 822; Yeaton v. Lenox, 7 Pet. 220; The Enterprise, 2 Curt. 317, Fed. Cas. No. 4,497; Warner v. Railway Co., 4 C. C. A. 670, 54 Fed. 920, 922.

The appeal is dismissed, and the costs of this court are adjudged to the appellee.

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87 F. 839, 31 C.C.A. 248, 1898 U.S. App. LEXIS 2036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-city-of-lynn-ca1-1898.

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