Railroad Company v. Bradleys

Railroad Company v. Bradleys. 1. A decree ordering an injunction, previously granted to restrain a said under a deed of trust, to be dissolved, and directing a sale according to the deed of trust, and the bringing of the proceeds into court, beld. to be a final decree. 2. An actual allowance of an appeal may be inferred where .the record shows that an appeal was prayed for in open court, and an appeal bond filed and approved by one of the judges.' 3. A supersedeas granted, the record showing that a decree dissolving an injunction was made on the 6th of February, a petition for the suspension of the order filed by one party on the1 same day, by another on the 15th, a petition to open the decree on the 13th; a motion to rescind, made on the 6th March, during the term at which the decree was rendered, which'motion was heard and denied on the 13th, with an appeal prayed in open court on the 20th, and an appeal bond filed on the 23d.', Motions to dismiss and for supersedeas, pn an appeal from ■ tbo Supreme Court-of the District of Columbia. ■ The case-was thus: The Washington, Georgetown, and-Alexandria Railroad Company had filed, in 1863, a bill' to enjoin the City ¿f Washington and 7. and A. Bradley, trustees, from making sale of certain property conveyed by the company in mortgage to the said Bradleys as trustees, and-UDder .which the Bradleys were about to sell the property to pay the mortgage debt. An injunction was accordingly granted. But after various proceedings on both sides, a decree was entered, on the 6th,of February, _1869, which ordered that, the injunction be dissolved, and directed, a sale by the Bradleys, the trustees of the property in controversy, according to the deed of 'trust, and-the bringing of the proceeds into court to abide further orders. From this decree an. appeal was prayed in open court by tlie railroad company, and subsequently an appeal bond was filed in the court, and approved by one of- the judged. But it did not appear directly^ that an appeal was allowed. As already stated, the decree dissolving the injunction 'and directing -a sale, was entered, on the 6th of February, 1869. i A petition for the suspension of this order of dissolution was filed, by the secretary of the railroad company, on the same day; a motion to the same effect was made in behalf of the Department of War, on the 15th of February, and a petition, to open the 'decree was filed on the 13th of February, by’one-of the stockholders of the company.' ■ On the 6th of March, and during the term.at which the decree ‘was rendered, a motion to rescind was made in behalf of the railroad company, and on the 13th of that month was heard and denied. On..the 20th the appeal, was prayed by. the railroad company, and on the 23d, the bond of appeal was-approved and filedi Upon this state of facts two motions were now made'in this court, — one, in behalf of the appellees, to dismiss the :pause for want’ of jurisdiction; the other, in behalf of .the appellants, for a supersedeas^ In support of the motion to -dismiss, it waé urged, Mrst, thatthe decree - appealed, from was-not final; and, Secondly, that there was no allowance.of appeal.- • In support of the motion for .‘supersedeas, that the appeal bond was appi’oved, and filed'within ten days after the decree. Messrs. Riddle and Brent, for the appellants. Mr. J. H. Bradley, contra. • [MAJORITY — The CHIEF JUSTICE] The CHIEF JUSTICE delivered the opinion of the court. We think that the decree entered on the 6th of February, 1869,- was a final decree within the principles of the case of Thomson v. Dean, decided at this term, though it iqight have been otherwise had the decree been limited to the dissolution of the injunction, thereby merely permitting the truste.es to sell under their trust. The first ground of the motion to dismiss, therefore, can- . not be sustained. Nor is the second ground more. tenable. It is true that it does not appear upon- the record directly that" there was an allowance of the appeal; but an appeal was prayed, and subsequently the appeal bond was filed ,in the court, ahd- approved by one of the judges; and, we think, it .may be properly- inferred, from' these facts, that an appeal was actually allowed. , The motion to dismiss, therefore, must be denied. In support of the motion for supersedeas, it was argued that the appeal bond was approve^, and filed within ten days after the decree. The decree was entered on the 6th of February, 1869. A petition for..the suspension of .the order of dissolution was filed, by the secretary of the complainants, on the same day; a niotion to. the same effect was made in behalf of the Department-of War, on the 15th of February; and a petition to open the decree was filed on the 18th of February, by one of the stockholders of the company. We do not think it necessary to consider the effect vof either of these proceedings; for, on the 6th'of March, and, as we understand, during the term at which the decree was rendered, a motion to rescind was made in behalf of the •complainants, and was heard and decided. There is no-doubt that, during the term, the decree was, at all times, subject to be- rescinded or modified, upon motion, and could, not, therefore, be regarded as-absolutely final, until the end of the term. It became final, in this case, when the motion to. rescind had been heard and denied. This took place on the 13th of March, and, on the 20th, the appeal was prayed in open court, and on the 23d the bond of appeal was approved and filed. We think this was in time, and the motion for supersedeas must, therefore, be allowed. Orders accordingly Supra, p. 342. Brockett v. Brockett, 2 Howard, 240.