Pooler v. Hyne

202 F. 194, 1912 U.S. App. LEXIS 1598

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 25, 1912
• Docket: Nos. 1,944, 1,945
• Status: Published

Opinion

PER CURIAM.

Motions are presented in each of these appeals: First, on behalf of the appellee, to dismiss the appeal (1) for failure to serve the citation issued therein within 6 months after the entry of the decree, and (2) for failure of the appellants to pay the clerk’s estimate of costs for printing- the record; and, second, on behalf of the appellants for extension of time for payment of such costs, on affidavit of cause therefor.

1. The motions for dismissal of the appeal for want of jurisdiction are overruled. The decree appealed from in each case was entered December 21, 1911, and the trial court allowed the appeal and issued the citation June 18, 1912 — after the term during which the decree was entered, but within 6 months from such entry. Although'service-of the citations upon the appellants was not obtained until June 24, 1912, the jurisdiction of this court is unaffected by the fact of such service after the expiration of the 6 months. Dayton v. Lash, 94 U. S. 112, 24 L. Ed. 33; Jacobs v. George, 150 U. S. 415, 14 Sup. Ct. 159, 37 L. Ed. 1127. The various authorities cited in support of the motion — in reference either to writs of error or to appeals in other jurisdictions- — are inapplicable to these appeals in equity under the federal practice, wherein jurisdiction of the cause is acquired upon allowance of the appeal. Citation of the appellees is needful only for the purpose of docketing the appeal for hearing, when allowed without their presence, either actual or constructive. If allowed during the term, all parties are constructively present, and citation is not required; but allowance after the term entitled the appellees, in their absence, to service of citation before the appeal is docketed for hearing. So, the motion to dismiss for want of such service is without force. See In re T. E. Hill Co., 148 Fed. 832, 78 C. C. A. 522.

The other motions, to dismiss for failure to pay the estimate for printing the record, remain open, subject to compliance on the part of the appellants with leave to make such payment, as hereinafter allowed.

2. The applications on behalf of the appellants for an extension of time to pay the costs estimated for printing the record in the appeals, respectively, show reasonable cause for an extension of 60 days from and after the commencement of the current term of this court. Leave is granted accordingly to make the payments within such period; and in the event of nonpayment thereof, as thus authorized, rules shall be entered for dismissal of the appeals respectively.