The Montgomery v. The Betsey

17 F. Cas. 627, 1 Gall. 416

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1813
• Status: Published

Opinion

STORY, Circuit Justice.

As by the 21st section ' of the judiciary act of 24th September, 1789, c. 20 [1 Stat. 83], appeals from the district court must be prosecuted at the next circuit court held after pronouncing the decree, it is clear that this appeal must be pronounced to be deserted. The only question is whether the principal cause shall be remitted to the district court for final proceedings, or the de.cree' shall be affirmed in this court On examination of the authorities and consideration of the peculiar organization of this court, I am satisfied that on a failure of the appellant to enter and prosecute his appeal, the appeal may be pronounced to be deserted, and the principal cause remitted to the court below for final proceedings; and in such case the taxation of the costs may be retained in the circuit court, or directed to be made in the court below; or the appellant may produce the record and have the principal cause retained here, and, upon a hearing ex parte, claim an affirmation of the original decree, with costs. The appellant may therefore elect to proceed as he may deem most for his interest. I understand that an affirmation of the decree, in cases like the present, has been an unquestionable practice of this court.

Decree affirmed, with costs.