Nathan Carr and Others v. Joseph Hoxie

38 U.S. 460, 10 L. Ed. 247, 13 Pet. 460, 1839 U.S. LEXIS 452

• Court: Supreme Court of the United States
• Decided: March 18, 1839
• Status: Published

Opinion

Mr. Justice Story

delivered the opinion of the Court.

This is an appeal from a decree; in equity of the Circuit Court for the district of Rhode Island, made in a cáse where the appellant was the original defendant. The.facts, so far as they aré now before us upon the present recprd and appeal, are briefly these: — The original decree was made at the June term of the Circuit Court, 1834; and at the same term, an appeal was taken' therefrom to the Supreme 'Court. The appeal was entered at January term, 1835, of the Supreme Court, and was dismissed for want of due prosecution, at January term, 1837. At the November term-of‘the Circuit Court, 1837, a petition was filed by the original appellant,-praying for a new and second appeal from the original decree; which was granted by -the Court, upon bonds being given according to law.' At the same term, the original plaintiff prayed for further proceedings to enforce the original decree, whereupon a supplemental decree was passed by the Court, for a sale of the premises in controversy,-pursuant to’ the original .decree : and .from this last decree the original appellant also claimed an appeal, which was granted. b'y the Court upon his giving bonds: ana the case now comes before us solely upon this last appeal, the record and proceedings, in the- original suit not having as yet been brought up and filed in the Court, in pursuance of the second appeal from the original decree' álready referred to. The question, therefore, whether this second appeal lies to this Court, after the dismissal of the former appeal, is not now before us; and can only arise when the original proceedings shall come before us,, upon a due prosecution and entry of the second appeal. The only question now before us is, whether this second appeal is, under the circumstances, a supersedeas' to all further proceedings in the Circuit Court to execute the original decree. If it is, then the appeal from the supplemental decree of sale is maintainable; otherwise, it ought to be dismissed. Upon full consideration,-we are of opinion that it is no supersedeasthat the Circuit . Court is at full liberty, in its discretion, to proceed to execute the original decree, if-it shall deem it advisable: and that-the supplemental decree of sale is but a decree in' execution of the original decree; and not a final decree in the contemplation of the acts of Congress, from which an appeal like that now before us lies. It must, therefore, be dismissed with costs. But, in order to guard against any .misapprehension, it is proper to add, that this dismissal is in no sense to be construed to prevent the original proceedings and decree-from being brought before this Court upon the second appeal taken thereto in the Circuit Court, for full consideration, whether it lies or not..

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof, it is the opinion -of this Court, that the supplemental decree of sale, in execution .'of the original decree, in this case, is but an execution of the original decree, and not a final decree from which an appeal lies to this Court.. Whereupon it is ordered, adjudged, and. decreed by this Court-, that this appeal be, and the same is hereby,, dismissed with costs; and that this cause be, and the same is hereby,remanded to the said Circuit Court, with directions that the said Court may, in its discretion, proceed to execute the original decree, if it shall deem it adyiseable. ,