Opinion of the Court.

the appeal of Nelson from that decree is No. 1027; and the appeal of Sickles and Stevens from that decree is No. 1074.

Motions are now made, in the four cases, by John Bower & Co., and John F. Betz, to dismiss the two appeals in No. 181, and the other three appeals, on the grounds, that the transcript of the record was not filed, and the cause was not docketed, in this court at the term thereof next after the time when the appeals respectively were prayed and allowed; and that no citations were issued on any of the appeals. A motion is also made by T. W. Ferry, Hodgden, Elwell, Nims, and E. P. Ferry, to dismiss the four appeals from the decree of May 3, 1883, for want of jurisdiction, and also for want of due prosecution, because they were not lodged, or filed, or docketed, in this court during the term next succeeding the date of their allowance; and to dismiss the appeal, in No. 181, from the decree of October 8, 1883, for want of jurisdiction, because the amount involved is less than $5000; and to dismiss the appeals in Nos. 947 and 1027, for want of citations; and to dismiss all five of the appeals, because the appellees are not described in them with certainty.

As to Nos. 947, 1027 and 1074, the appeal in each is from the decree of May 3, 1883. In Nos. 947 and 1027, the appeals were allowed by an order of court, made in open court, on the 11th of September, 1883; and in No. 1074, by an order of court, made in open court, on the 12th of July, 1883. In No. 947, the transcript of the record was filed, and the case docketed, in this court, January 26, 1888; in No. 1027, June 26, 1888; and in No. 1074, August 30, 1888. The term of this court next ensuing the allowance of the several appeals in Nos. 947, 1027 and 1074, from the decree of May 3, 1883, was the October Term, 1883. That term commenced on the 8th of October, 1883, and ended on the 5th of May, 1884. The transcript of the record filed in all five of the appeals is certified by the clerk of the Circuit Court by a certificate bearing date October 4, 1884. The same transcript of the record is filed in all of the appeals. The transcript left the office of the clerk of the Circuit Court on October 6, 1884, and was sent by express, and reached the clerk of this court on October 10, 1884;

Opinion of the Court.

but no step was taken by any of the parties appellant, in No. 947, No. 1027, or No. 1074, to furnish security to the clerk for the payment of his fees, under § 1 of Rule 10 of this court, or to have the transcript filed, or the case docketed, or an appearance entered, at the term of this court next after the allowances of the appeals, to wit, the October Term, 1883.

The rule being well settled that this court will not entertain an appeal where the transcript of the record is not filed in this court at the term next succeeding the taking of the appeal, Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258, 259, and cases there cited, unless a recognized satisfactory excuse for the laches is made, it is sought in these cases to show such excuse by the following facts: In October, 1883, the appellants Richardson and Day as one party, Sickles and Stevens as one party, and Nelson and Soule and Thomas M. Nelson as one party, gave to the clerk of the Circuit Court a joint verbal order to make a transcript of the record without unnecessary delay, and forward it to the clerk of this court, the three parties to pay to the former clerk the fees therefor pro rata, according to the amounts of their respective claims. After such order to the clerk, the appeal of Richardson and Day from the decree of October 8, 1883, was taken. The clerk did not know that each appeal was a separate matter, but believed that all the appeals made but one case, and that, if the record should reach this court in time for any one appeal, it would bring up the case as a whole, with all the appeals; and he understood and believed, while he was copying the record, that if the transcript should arrive at the office of the clerk of this court on or before October 15, 1884, it would be in ample time to make all of the appeals valid, on the filing and docketing of the transcript. The clerk prepared the transcript as soon as he could, having regard to the other duties of his office and to the size of the record, (which makes 1235 printed pages, as printed here). He did not complete the making of the transcript until about June 24, 1884, and forwarded it by express to the clerk of this court on October 6, 1884. These facts are supported by an affidavit of the clerk, and by one of the solicitor for Nelson and Soule, to the same effect.

Opinion of the Court.

We cannot admit the validity of this excuse, in regard to the three appeals in question. All suitors in this court are bound by its written rules, and its practice and decisions are established and known. The same ruling must apply to the appeal in No. 181, from the decree of May 3, 1883. That appeal was allowed July 12, 1883. The transcript of the record was not certified until October 4, 1884, and did not reach the hands of the clerk of this court until October 10, 1884, all of which occurred after the expiration of the October Term, 1883, of this court.

three.

That appeal therefore fails, with the other

But the appeal in No. 181, of Richardson and Day, from the decree of October 8, 1883, was allowed on November 17, 1883, after the commencement of the October Term, 1883, of this court. It was, therefore, returnable to the October Term, 1884, of this court. The transcript, as before stated, was put into the hands of the clerk of this court, in his office, on the 10th of October, 1884. The counsel for Day and Richardson took no further step in the matter until September 25, 1885, when he wrote to the clerk of this court, desiring his appearance to be entered for them. After some further correspondence, the counsel was informed by the clerk that, although the latter had received the record in October, 1884, the appeals had not been docketed, because the rule as to a deposit for costs (Rule 10) and that as to the entry of appearance (Rule 9) had not been complied with. On a compliance with such rules, and on the 26th of October, 1885, the case was docketed, and an appearance for Richardson and Day was entered.

The principle applicable to such a state of facts is that established by the decision in Edwards v. United States, 102 U. S. 575. In that case, a writ of error was issued, returnable at October Term, 1877. A transcript of the record was lodged in the office of the clerk of this court in September, 1877, but by an oversight of the counsel for the plaintiff in error no fee bond was given, and the cause was not docketed during October Term, 1877. In September, 1878, an acceptable fee bond was given, and the cause was formally docketed. A motion was made, at October Term, 1880, to dismiss the writ of error. This

Opinion of the Court.

court denied the motion, and said (p. 576): "We are aware that in some of the cases it has been said that a writ of error or an appeal becomes inoperative if a transcript is not filed and the cause docketed during the term to which it is made returnable, but this has always been in cases where a return had not been made and a transcript had not been filed within the time. The language should therefore be construed in connection with those facts. In Owings v. Tiernan's Lessee, 10 Pet. 447, and Van Rensselaer v. Watts, 7 How. 784, leave was given to docket the cause after the term, when the transcript had been filed in time, but through inadvertence a fee bond had not been given and there had not been in the meantime a motion to docket and dismiss. That is this case.

If a return is made and the transcript deposited in the clerk's office in time, our jurisdiction is kept alive. The docketing of the cause after that is mere procedure, and if unreasonably delayed, the parties may be subjected to the consequences of a failure to prosecute a suit, which rest largely in the discretion of the court, when not provided for by rules. Rule 9 is of that class."

In the present case, although the transcript of the record in No. 181 was filed and the case was docketed on October 26, 1885, no motion to dismiss was made until the present term; and, under the foregoing views, we are of opinion that the appeal of Richardson and Day from the decree of October 8, 1883, cannot be dismissed on the ground that the case was not actually docketed during October term, 1884.

One ground urged for dismissing the appeal of Richardson and Day from the decree of October 8, 1883, is that, although that appeal was allowed by an order of court, made in open court on the 17th of November, 1883, at the same term at which the decree of October 8, 1883, was entered, yet the bond given to perfect such appeal was approved by the district judge on November 28, 1883, apparently out of court, although filed in the court on that day; and that, under these circumstances, a citation to the appellees was necessary, and none appears ever to have been issued.

As the appeal in question was allowed in open court, during

VOL. CXXX-8

Opinion of the Court.

the term at which the decree appealed from was rendered, and that appeal was perfected by the filing in due time of a bond duly approved, and the transcript of the record was, as we have held, duly lodged in this court at the next ensuing term thereof, namely, October Term, 1884, in such manner as to give this court jurisdiction of the case, no citation was necessary, unless the bond was accepted after the term at which the appeal was allowed. In the present case, it does not appear that the appeal bond was accepted in open court, or at or during the term at which the appeal was allowed; and a citation would seem to have been necessary. Sage v. Railroad Co., 96 U. S. 712, 715; Hewitt v. Filbert, 116 U. S. 142, 144; Brown v. McConnell, 124 U. S. 489, 491.

But, as to a citation, this case falls within the ruling in Dodge v. Knowles, 114 U. S. 430, 438, where it is said: "The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for the due prosecution of the appeal. The citation, if security is taken out of court, or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal allowed in open court, and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished; and this, whether the motion was made after the expiration of two years from the rendition of the decree or before."

In Hewitt v. Filbert, (supra,) it is said (p. 144): "The allowance by the court in session before the end of the term at which the decree was rendered, and when both parties are either actually or constructively present, is in the nature of an adjudication of appeal, which, if docketed here in time, gives this court jurisdiction of the subject matter of the appeal, with power to make all such orders, consistent with the practice of courts of equity, as may be appropriate and necessary for the furtherance of justice."

But the issuing of a citation may be waived by the appel