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Opinion of the Court.
Nothing inconsistent with this doctrine was decided in Hart v. Sansom, supra. The question there was as to the effect of a judgment. That judgment was rendered upon a petition in ejectment against one Wilkerson. Besides the allegations in the petition to sustain the ejectment against Wilkerson, were allegations that other defendants named had executed deeds, which were described, which were clouds upon plaintiffs' title; and in addition an allegation that the defendant Hart set up some pretended claim of title to the land. This was the only averment connecting him with the controversy. Publication was made against some of the defendants, Hart being among the number. There was no appearance, but judgment upon default. That judgment was, that the plaintiffs recover of the defendants the premises described ; "that the several deeds in plaintiffs' petition mentioned be, and the same are hereby, annulled and cancelled, and for naught held, and that the cloud be thereby removed;” and for costs, and that execution issue therefor. This was the whole extent of the judgment and decree. Obviously in all this there was no adjudication affecting Hart. As there was no allegation that he was in possession, the judgment for possession did not disturb him; and the decree for cancellation of the deeds referred specifically to the deeds mentioned in the petition, and there was no allegation in the petition that Hart had anything to do with those deeds. There was no general language in the decree quieting the title as against all the defendants; so there was s thing which could be construed as working any adjudication against Hart as to his claim and title to the land. He might apparently be affected by the judgment for costs, but they had no effect upon the title. So the court held, for it said: “It is difficult to see how any part of that judgment (except for costs) is applicable to lart; for that part which is for recovery of possession certainly cannot apply to Hart, who was not in possession; and that part which removes the cloud upon the plaintiffs' title appears to be limited to the cloud created by the deeds mentioned in the petition, and the petition does not allege, and the verdict negatives, that Hart held
Opinion of the Court.
An additional ground assigned for the decision was that if there was any judgment (except for costs) against Hart, it was, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title, and therefore, according to the ordinary and undisputed rule in equity, was not a judgment in rem, establishing against him a title in the land. But the power of the State, by appropriate legislation, to give a greater effect to such a decree was distinctly recognized, both by the insertion of the words “unless otherwise expressly provided by statute,” and by adding: “It would doubtless be within the power of the State in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose.” And of course, it follows that if a State has power to bring in a non-resident by publication for the purpose of appointing a trustee, it can, in like manner, bring him in and subject him to a direct decree. There was presented no statute of the State of Texas providing directly for quieting the title of lands within the State, as against nonresidents, brought in only by service by publication, such as we have in the case at bar, and the only statute cited by counsel or referred to in the opinion was a mere general provision for bringing in non-resident defendants in any case by publication; and it was not the intention of the court to overthrow that series of earlier authorities heretofore referred to, which affirm the power of the State, by suitable statutory proceedings, to determine the titles to real estate within its limits, as against a non-resident defendant, notified only by publication.
It follows, from these considerations, that the first question presented in the certificate of division, the one heretofore stated, and which is decisive of this case, must be answered in the affirmative. The judgment of the Circuit Court is reversed, and the case
remanded for further proceedings in accordance with the views herein expressed.
When the term at which an appeal is returnable goes hy without the filing
of the record, a second appeal may be taken, if the time for appeal has
not expired. If an appellee does not avail himself of his right, under the ninth rule,
to docket and disiniss an appeal for neglect of the appellant to docket the case and file the record as required by the rules, the appellant may file the
record at any time during the return term. The failure to obtain a citation or give a bond within two years from the
rendition of a decree does not deprive this court of jurisdiction over an appeal, when the transcript of the record is filed here during the term succeeding its allowance.
MOTION TO DISMISS. The case is stated in the opinion,
Mr. J. McConnell and Mr. W. Hallett Phillips for the motion.
Mr. A. H. Garland, Mr. J. J. Johnson and Mr. H. J. May opposing
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
The decree in this case was rendered on the 19th of June and a rehearing refused on the 6th of July, 1885. On the 8th of July of that year an order, was entered allowing Mrs. Evans and her husband, who were complainants below, an appeal to this court upon giving bond with security as directed; and upon the same day the bond was filed and approved. Nothing further was done, and the record not having been filed in this court during the succeeding term the appeal became of no avail, because not duly prosecuted. Credit Company v. Arkansa8 Central Railway Co., 128 U. S. 258. On the 21st of May, 1887. Mr. and Mrs. Evans petitioned the Circuit Court to
Opinion of the Court.
allow an appeal from said decree, which was on that day allowed and entered of record, on the petitioners furnishing bond conditioned according to law. This bond was accordingly given and approved on the 3d of October, 1887, and citation issued and served, returnable at October term, 1887. The record was filed here on the 31st of March, 1888, one of the days of that term.
A motion is now made to dismiss the appeal, upon the grounds that it could not be granted, because the court had exhausted its power by the allowance of the first appeal, and because, if this were not so, the second appeal was not taken within two years from the entry of the decree. As to the first of these grounds, it may be remarked, that when the term elapsed at which the first appeal was returnable, without the filing of the record, that appeal had spent its force, and the matter was open to the taking of a second appeal, as it would have been if the appellee had docketed the cause and had it dismissed. As to the second appeal, this was taken within the two years, by its allowance by the Circuit Court and not lost, as he did not fail to file the record during the succeeding term. Neither the signing of the citation, nor the approval of the bond, was necessary to our jurisdiction, but it was essential that the record should be filed during the term at which the appeal was returnable.
Under the ninth rule, it is the duty of an appellant to docket his case and file the record with the clerk of this court within the first six days of the term, where the decree was rendered thirty days before the commencement of the term, and bis is not done, the appellee may have the case docketed and dismissed as therein provided; though even then the court may by order permit the appellant to docket the case and file the record after such dismissal. And it has always been held that if the case is not so docketed and dismissed by the appellee, the appellant is in time if the record be filed during the return term.
The filing of the transcript of record in this case under the second appeal, during the term succeeding its allowance, suffired for the purposes of jurisdiction, which was not defeated
Statement of the Case.
by the failure to obtain a citation or give the bond within two years from the rendition of the decree. Edmonson v. Bloomshire, 7 Wall. 306; Richardson v. Green, 130 U. S. 104, and cases cited. The motion to dismiss is therefore
MACON COUNTY v. HUIDEKOPER.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR
WESTERN DISTRICT OF MISSOURI.
No. 615. Argued January 17, 20, 1890. - Decided March 17, 1890.
The power, conferred by the statutes of Missouri upon counties within the
State, to levy and collect annually a tax of one-half of 'one per cent upon all the taxable wealth of the county for county revenue, is not exhausted by a levy of thirty cents' on every one hundred dollars of taxable property for county purposes, and the levy of twenty cents on the same by the board of townships for township and bridge purposes; and a judgment creditor of such a county has a right to require' it to impose further taxation, within the limit of the unexhausted power, for his benefit.
On the 19th of November, 1879, the relator, Alfred Huidekoper, recovered in the Circuit Court of the United States for the Eastern Division of the Western District of Missouri, a judgment against Macon County, in that State, for $28,033.00, and costs, upon interest coupons detached from certain bonds issued May 2, 1870, by that county to the Missouri and Mississippi Railroad Company, under the authority of the 13th section of the act incorporating the company, approved February 20, 1865. The judgment not having been paid, and pursuant to a mandate of the court, a warrant was issued, dated April 29, 1884, upon the treasurer of the county, directing him to pay to the relator $35,677.47 out of the general funds of the county in payment of that judgment. This warrant represented the judgment with interest and costs. It was on the same day presented for payment to the treasurer