151 U.S. 135 - Vorhees v. John T Noye Manuf'G Co

C. S. Montgomery, for appellant.

Charles J. Greene, for appellee.

THE CHIEF JUSTICE.

The decree in this cause was entered on January 7, 1891, at the November term, 1890, of the circuit court of the United States for the district of Nebraska, and at its foot the court minuted: 'Lucas A. Vorhees prays an appeal, which is allowed;' and also, 'L. A. Vorhees has leave to file motion for rehearing Saturday.' On the 10th of January, which was the Saturday following, the application of L. A. Vorhees for rehearing was filed.

It appears of record that on January 9, 1892, at the November, 1891, term of the court, 'this cause, coming on to be heard this day on the motion for rehearing filed herein, was argued and submitted to the court by solicitors for the respective parties; whereupon the court takes the same under consideration.' On February 3, 1892, at the January term, 1892, the record shows that the motion for rehearing of the cause 'on its merits was reargued and submitted to the court by solicitors for the respective parties,' and taken under advisement.

February 17, 1892, at the same January term, the motion for rehearing was denied, the court holding that 'it is now too late to sustain said motion, or to interfere with the decree.' March 23, 1892, the refusal of certain defendants to join in an appeal was filed, which refusal was dated January 17, 1891. April 15, 1892, an appeal bond was given by Lucas A. Vorhees, conditioned for the prosecution of the appeal allowed January 7, 1891, approved by the court and filed April 18, 1892. The record was filed in this court April 19, 1892, certified by the clerk of the circuit court April 5, 1892. The bond is certified to by the clerk of the circuit court under date April 21, 1892.

The jurisdiction of the court below depended solely upon the diverse citizenship of the parties; and by the act of March 3, 1891, (26 Stat. 826, c. 517,) the jurisdiction of this court in such cases was taken away, although preserved by the joint resolution of March 3, 1891, (Id. 1115,) as to pending cases, and cases wherein the appeal should be taken before July 1, 1891. The appeal was allowed January 7, 1891, but the decree did not take final effect as of that date for the purposes of an appeal, nor until February 17, 1892, because the application for rehearing was entertained by the court, filed within the time granted for that purpose, and not disposed of until then. Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. 4.

The appeal bond was not given until April 15, 1892, but the record was filed in this court April 19, 1892, which was one of the days of the October term, 1891, of this court. Notwithstanding this, however, and without considering the question as to whether this appeal was properly prosecuted in respect of parties, within Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39, we are of opinion that as the circuit court had jurisdiction, and this court had not, long after July 1, 1891, the taking of a new appeal became necessary upon the denial of the rehearing, and this could only be to the circuit court of appeals for the eighth circuit. Cincinnati Safe & Lock Co. v. Grand Rapids Safety-Deposit Co., 146 U. S. 54, 13 Sup. Ct. 13.

Appeal dismissed.