ant in error will do. Merely mailing it to a defendant in error is not sufficieent."

530. Appeals.-Where an appeal is the proper method of taking the case up, the defeated party is entitled to appeal. It is true that it is necessary for him to have his appeal allowed. Nevertheless, it is, in a proper case, a matter of right. The Supreme Court has said that its allowance is in reality nothing more than the doing of those things which are necessary to give the appellant the means of invoking the jurisdiction of the reviewing tribunal.1

An appellant presents a short petition to the lower Court or the judge thereof stating his desire to appeal and asking that his appeal be allowed. With this he presents his assignment of errors and a citation to the other party, as he does when he sues out a writ of error. It is not necessary to obtain a citation when both the appeal is prayed and the bond given in open Court during the term at which the judgment or decree appealed from is entered. The presumption is that all the parties are present in Court.2

531. Appeal Bond. Neither an appeal nor writ of error is complete until a proper bond is given with good and sufficient security that the appellant or plaintiff in error will prosecute his appeal or writ with effect, or if he fails therein will answer for all costs. Regularly this bond should be presented and approved at the time the appeal or writ is allowed and the citation issued, but the failure to do so at that time is not fatal to the jurisdiction. sented and approved in the appellate Court.1

532.

It

may be pre

Summons and Severance.-In cases at law where a judgment is joint, all the parties against whom it is rendered must unite in the writ of error. In chancery cases all those against whom a joint decree is rendered must partici

Tripp vs. Santa Rosa Street R. R. Co., 144 U. S. 126.

1 Brown vs. McConnell, 124 U. S. 489.

2 Hewitt vs. Filbert, 116 U. S. 142.

1 Brown vs. McConnell, 124 U. S. 489.

pate in the appeal. If one or more do not, the writ or the appeal, as the case may be, will be dismissed. The purpose of the rule is to insure that the successful party shall not be prevented by the appellate proceeding from enforcing his judgment or decree against the parties who do not wish to have it reviewed, and to avoid the possibility of the appellate tribunal itself being required to decide a second or third time the same question on the same record. This it might have to do, if different parties could prosecute separate appeals.

The common law had worked out a method of proceeding when one would not take legal steps to secure a right which others jointly interested with him wished to enforce. It might be that two persons were the holders of a joint obligation; neither could legally sue without the other. Or, it might be, that a judgment had gone jointly against two persons and only one of them was willing to sue out a writ of error. In either case the party who wished to proceed caused a writ of summons to be issued. The unwilling one was thereby brought before the Court. If he then still refused to act, an order or judgment of severance was made against him. Thereafter his right to sue upon the claim was gone forever, and the other party might proceed without him. This somewhat elaborate mode of proceedure has probably become obsolete. Strict compliance with it is no longer necessary. All that is required is that written notice of the desire of the other to appeal be served on him or that he enter his appearance in Court and there refuse to proceed. When either of these facts are shown, the Court may allow the other party to prosecute his appeal alone.

In one case an appeal had been taken in the name of two persons. One of them appeared and had the order of appeal, so far as he was concerned, stricken out. It was held that all the purposes of a summons and severance had been obtained. The other party could proceed without him.1

The appellee can at once enforce his decree against the party who will not join and the latter will be estopped to appeal thereafter.2

1 Farmers' Loan & Trust Co. vs. McClure, 78 Fed. 211. Masterson vs. Herndon, 10 Wall. 416.

533. Supersedeas. If the plaintiff recovers a judgment below in a suit at law, or if a decree in equity requires one of the parties to pay money, to convey property, or to do or refrain from doing some other thing, it may be quite important to the person against whom the judgment or decree bas gone that he shall have the right, pending the determination of the appellate proceedings, to have the enforcement of the decree below suspended or, in legal phrase, superseded. In order that he may have an opportunity to do this, the Revised Statutes1 provide that where a writ of error may operate as a supersedeas, execution shall not issue until after the expiration of ten days from the entry of the judgment. It will behoove a defendant, therefore, against whom judg ment has been given, to sue out his writ of error and to do the other things necessary to supersede the judgment within ten days. It is true that the same section gives him sixty days, exclusive of Sundays, in which he may as of course supersede, but the plaintiff may at any time after the ten days cause execution to issue. The subsequent giving and approval of the bond will stop further proceedings. It will not undo anything which has been done. A judgment ousting the defendant from office and putting the plaintiff in had been given by a territorial Court. Ten days, exclusive of Sundays, after the entry of the judgment passed without the giving of any supersedeas bond. At the end of that period execution issued. Defendant was put out and plaintiff in. Thereafter, and within sixty days from the entry of the original judgment a supersedeas bond was filed and approved. The plaintiff below refused to vacate the office into which the judgment of the territorial Court had put him. The defendant below, the plaintiff in error above, thereupon applied to the Supreme Court for an order restoring him to the office, but that Court held that the supersedeas did not undo anything which before it was granted had been lawfully done. The appeal was thereupon dismissed by consent. The term of the office in dispute would have expired before the case could in its regular order have

been heard by the Supreme Court. In such cases the importance of giving bond promptly is obvious.2

A judge or justice of the appellate tribunal may at his discretion allow a supersedeas even after sixty days, but only in the event that the writ of error has been issued within that time; that is to say, if the party aggrieved wishes to prevent his adversary from executing, he must sue out his writ of error and have his supersedeas bond allowed within ten days. If he wishes to be in a position to ask for a supersedeas at all he must obtain his writ of error within sixty days. If he does, he has the right within sixty days to supersede the judgment or decree. If he allows the sixty to elapse, he may even then be allowed to supersede if, in the discretion of a judge of the appellate Court, it is proper that he should, but if he has not sued out his writ of errer within the sixty days he cannot in any way obtain a supersedeas.3

The exclusion of Sundays applies to all the periods mentioned in the section of the Revised Statutes under consideration. Sundays are not counted at all, so that the plaintiff in error or appellant has sixty secular days after the judgment or decree in which to obtain his writ of error and file his supersedeas bond.*

534. Amount of Supersedeas Bond.-An appeal bond is required in all cases. If, however, the appellant or plaintiff in error does not wish to supersede or is unable to give security in the amount required, his bond may be limited to a sum sufficient to cover the probable costs of an appeal. On the other hand, if he does wish his appeal to operate as a supersedeas, he must give bond sufficient, if he fail in his appeal to insure the payment of all damages and costs. The amount of the bond, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just

Board of Commissioners vs. Gorman, 19 Wall. 661. 'Kitchen vs. Randolph, 93 U. S. 86. 'Danville vs. Brown, 128 U. S. 503.

damages for delay and costs and interest on the appeal. Where the property in controversy necessarily follows the event of the suit, as in real actions, in replevin and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, as in the case of recapture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the Court, the bond will be required in an amount sufficient merely to secure the sum recovered, for the use and detention of the property and the costs of the suit and just damages for delay, and costs and interest on the appeal.1

535. What Decrees Can Not Be Superseded as of Right. There are many decrees in equity which the appellant has no absolute right to supersede. They may be important. They may grant an injunction or they may refuse or dissolve one, or they may appoint a receiver. Still the party aggrieved, though he appeal, cannot demand that the enforcement of the decree shall be superseded. In such matters the statute give the trial or the appellate Court or a judge thereof the discretion to say whether in any particular case the order shall or shall not be superseded. Where appeals are taken from interlocutory decrees granting or refusing or dissolving injunctions or appointing receivers under section 129 of the Judicial Code the order appealed from is not suspended during the pendency of the appeal unless the Court which pased it or the appellate Court or a judge thereof shall otherwise order. The contention that language of the section implies a suspension of the order appealed from was held by the Supreme Court to be unjus tified.2

By the 74th Rule, when a judge or justice who took part in the decision of the cause, allows an appeal from a final decree in an equity suit granting or dissolving an injunction he may in his discretion at the time of such allowance make

1 Supreme Court Rule 29.

Hovey vs. McDonald, 109 U. S. 150.

In re Haberman Mfg. Co., 147 U. S. 525.