The Roarer

20 F. Cas. 851, 1 Blatchf. 1

Opinion

NELSON, Circuit Justice.

I think the decree is correct as it stands. Only one of the respondents below appealed. The appeal was dismissed, as respected a portion of the libellants, on the ground that the sums awarded to them severally were not of sufficient amount to sustain an appeal. The issue, therefore, in this court was confined to the appellant and the remaining appellees, and the decree on the appeal was between these parties, and these alone. It could extend to no others, for in judgment of law, they were the only parties on the record in the appeal suit, and the decree entered had relation to them exclusively.

The whole decree in the court below is brought up on the appeal. In its nature it is not severable. A part of the suit cannot be in one court and a part in another at the same time. And as this court has no power to remit its proceedings to the court below, it must execute the decree here.

But, although the whole of the decree of the district court is brought here, only part of it is appealed from. The part not appealed from remains here, in full force, to be executed on the final termination of the cause. There is, therefore, no difficulty in executing the decree as modified by the decision of this court on the appeal. What is not reversed is still in force, and becomes part of the decree in this court, and is to be executed as such. Motion denied.