United States v. Morris' Heirs

U.S. Circuit Court for the District of Eastern Louisiana

United States v. Morris' Heirs

153 F. 240, 1907 U.S. App. LEXIS 5091

CourtU.S. Circuit Court for the District of Eastern Louisiana

DecidedApril 1, 1907

DocketNo. 13,466

StatusPublished

Cited by2 cases

This text of 153 F. 240 (United States v. Morris' Heirs) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Eastern Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Morris' Heirs, 153 F. 240, 1907 U.S. App. LEXIS 5091 (circtedla 1907).

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Opinion

SAUNDERS, District Judge.

This is a suit on an appeal bond given in 1867- in favor of the government. The appeal was taken from a judgment in a common-law suit in the District Court. The Circuit Court, when its attention was called to the fact that the matter had been brought before it by appeal and not by writ of error, dismissed the appeal. The defendant then sued out a writ of error, on which nothing was done for 35 years, when the government filed the transcript and had the appeal dismissed on the writ of error.

This suit is now brought on the appeal bond. Under the decision in Saltmarsh v. Tuthill, 12 How. 387-389, 13 L. Ed. 1034, the proceedings by appeal in a common-law case were mere nullities. The plaintiff could have' sued out execution notwithstanding the granting of the appeal, and the appeal would unquestionably not have operated to restrain the execution of the judgment. I do not think that the appeal bond did, in law or in fact, restrain the government from executing the judgment it had obtained. There was no consideration for the appeal bond. It effected nothing in law, and the government had therefore-no right to sue upon it.

For these'reasons, I sustain the exception, on the ground that the appeal bond was a mere nullity, and dismiss the suit.

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SAUNDERS, District Judge.

This is a suit on an appeal bond given in 1867- in favor of the government. The appeal was taken from a judgment in a common-law suit in the District Court. The Circuit Court, when its attention was called to the fact that the matter had been brought before it by appeal and not by writ of error, dismissed the appeal. The defendant then sued out a writ of error, on which nothing was done for 35 years, when the government filed the transcript and had the appeal dismissed on the writ of error.

This suit is now brought on the appeal bond. Under the decision in Saltmarsh v. Tuthill, 12 How. 387-389, 13 L. Ed. 1034, the proceedings by appeal in a common-law case were mere nullities. The plaintiff could have' sued out execution notwithstanding the granting of the appeal, and the appeal would unquestionably not have operated to restrain the execution of the judgment. I do not think that the appeal bond did, in law or in fact, restrain the government from executing the judgment it had obtained. There was no consideration for the appeal bond. It effected nothing in law, and the government had therefore-no right to sue upon it.

For these'reasons, I sustain the exception, on the ground that the appeal bond was a mere nullity, and dismiss the suit.

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Bluebook (online)

153 F. 240, 1907 U.S. App. LEXIS 5091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morris-heirs-circtedla-1907.

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