Noonan v. Chester Park Athletic Club Co.

93 F. 576, 13 Ohio F. Dec. 368, 1899 U.S. App. LEXIS 2260

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 28, 1899
• Docket: No. 668
• Status: Published

Opinion

PEE CURIAM.

A motion is made to dismiss the appeal in this case on the ground that it was not talcen in time. It appears that the final-decree was entered in the circuit court March 21,1898. The appeal was allowed on the 20th of September of the same year. The bond was not given, however, until the 26th of September, or more than six months after the decree was entered. The citation was duly issued, and the transcript of record was filed in this court in October following. The motion to dismiss is pressed on the ground that the appeal was not perfected within six months after the date of the decree appealed from. This is not necessary. The bar of the statute is saved by the allowance of the appeal. If the appeal, is not subsequently perfected, either by the filing of the bond or issuing of the citation or the filing of the transcript in due course, the appeal may become inoperative, and tbe court will then dismiss it. Altenberg v. Grant, 54 U. S. App. 312, 28 C. C. A. 244, and 83 Fed. 980; Railroad Equipment Co. v. Southern Ry. Co. (a decision by this court at tbe present term) 34 C. C. A. 519, 92 Fed. 541. It has been expressly decided by tbe supreme court in a number of instances that it is the allowance of the appeal, and not the perfecting of all the steps necessary to a hearing of the appeal in the court above, which saves the appellant or plaintiff in error from the bar of the statutory period of limitation fixed for the bringing of appeals and writs of error. Neither the issuing of the citation nor the giving of bond is jurisdictional. Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493; Dodge v. Knowles, 114 U. S. 430-438, 5 Sup. Ct. 1108, 1197; Peugh v. Davis, 110 U. S. 227, 4 Sup. Ct. 17; The Dos Hermanos, 10 Wheat. 306-311. The motion to dismiss is denied.