A Manual of Practice in the Courts of the United States

case after a nonsuit (U. S. v. Evans, 5 Cranch, 280; Welch v. Manderville, 7 Cranch. 152), or if judgment be entered on a nol pros. (U. S. v. Phillips, 6 Peters, 777), or if, without notice, a party obtains executory process upon an act in nature of a judgment by confession (Levy v. Fitzpatrick, 15 Peters, 167), no writ of error lies. So a writ of error does not lie to a judgment of the circuit court refusing a writ of habeas corpus in a controversy for possession of a child (Barry v. Mercem, 5 How. 103); or to a judgment discharging a person on habeas corpus. (Pratt v. Fitzhugh, 1 Black, 271.) If a cause is cognizable in either the circuit or the district court, a writ will not lie to reverse a judgment of the district court, although it has jurisdiction to act as a circuit court (Southwick v. The Postmaster General, 2 Peters, 442); so the Supreme Court cannot revise proceedings of the district court under complaint to enjoin proceedings under a treasury warrant of distress (U. S. v. Cox, 11 Peters, 162); so if the circuit court on a writ of error to the district court merely reverses the judgment no writ of error lies. (Brown v. Union Bank, 4 How. 465; Mayberry v. Thompson, 5 How. 122; Baker v. White, 92 U. S. 176.) If a third party intervenes to claim money paid into court, he cannot sue out a writ of error to an adverse decision. (Bayard v. Lombard, 9 How. 530.)

§ 592. Appeals in equity and admiralty cases. -An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court, or of any district court acting as a circuit court, in cases of equity and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, and the Supreme Court is required to receive, hear, and determine such appeals. (25 U. S. Stats. 829. Amended 18 U. S. Stats. 316.)

Appeals to Supreme Court -The appellate power of the Supreme Court is regulated by law, and the consent or agreement of the parties cannot affect it. (Gruner v. U. S., 11 How. 163; Sampson v. Welch, 24 How 207; The Alicia, 7 Wall, 572; The Lucy, 8 Wall. 307; The Nonesuch, 7 Wall 505; Merrill v. Petty, 16 Wall. 338). Only cases of equity or maritime jurisdiction can be appealed to this court (Jones v. La Vallette, 5 Wall. 479), and they can be carried to the court by appeal only. (U. S. v. Circuit Judges, 3 Wall. 673; The Baltimore, 8 Wall. 377; Hay s v. Fischer, 102 U. S. 121.) They cannot be taken up by writ of error (McCollum v. Eager, 2 How. 61; Walker v Dreville, 12 Wall. 440; The San Pedro, 2 Wheat. 132); nor will an appeal lie from a judgment at law. (Bevins v Ramsey, 11 How. 185.) No appeal lies from the decree of a district court (Sally v. US, 5 Cranch, 372); nor when the circuit court has special jurisdiction (The Pueblo Case, 4 Sawy 553); nor from an information for a forfeiture under the internal revenue laws. (U. S. v. Enholt, 8 Morr. Trans. 452.) Where the cause has been transferred from the district court to the circuit court on account of the private interest or general inability of the judge, an appeal will lie to the Supreme Court. (U. S. v. Circuit Judges, 3 Wall. 673). A bill of review is the appropriate mode of correcting errors apparent on the face of the record, (Clark v. Killian, 103 U. S. 766) A bill of review within two years from the time the decree was passed is in time. (Clark v. Killian, 103 U. S. 766.)

Equity appeals-Appeal is the only mode of review in equity suits, and it does not lie before final decree is rendered. (Hayes v. Fischer, 102 U. S. 121.) A person not a party to the original proceedings cannot appeal without showing that he has been admitted as a party or that he has acted or been treated as a party. (Ex parte Cutting, 94 U. S. 14.) If permitted to intervene at the same term of the entry of a decree, he may appeal, although not a party at the time of such entry (Sage v. Central K. R Co., 93 U. S. 412), and where he is made a party after the entry of a decree pro confesso, he may appeal from a final decree entered on a master's report made after he became a party. (Ex parte Jordan, 94 U. S. 248.) Where a decree affects both judgment creditors and general creditors, the case will

not be dismissed, although the judgment creditors alone appealed. (Day v. Washburn, 23 How. 309.) Although the defendant assigned his interest before the entry of the decree, he may appeal therefrom. (Ex parte Railroad Co., 95 U. S. 221.) A party may appeal from a decree directing the conveyance of property, although he has complied with it by executing the deed. (O'Harra v. MacConnell, 93 U. S. 150.) A purchaser at a sale under a decree to foreclose a mortgage may appeal from an order affecting his interests. (Blossom v. Railroad Co., 1 Wall. 655.) A receiver may appeal from a decree entered against him upon an adjustment of his account. (Hinckley v. G. C. & S. R. R. Co., 94 U. S. 467.) A stockholder cannot appeal from a decree against a corporation. (Ex parte Cutting, 94 U. S. 14.) A party may, to correct the error, appeal from a decree obtained by fraud. (U. S. v. Gomez, 3 Wall. 752.) Only a final decree can be appealed from. (McCollum, v. Eager, 2 How. 61; Crawford v. Points, 13 How, 11; Beebe v. Russell, 19 How. 283; Craighead v. Wilson, 18 How. 199; Crosby v. Buchanan, 23 Wall. 420; Hayes v. Fischer, 102 U. S. 121.) A decree passed by consent may be appealed from. (Pacific Railroad v. Ketchum, 101 U. S. 289.)

An appeal does not lie from an order at chambers denying the petition that all persons who had come into possession of the land pendente lite should surrender the same on demand (Heulig v. Page, 102 U. S, 219), nor from a decree merely entered in pursuance of the mandate. (United States v. Fremont, 18 How. 30.) No appeal lies from any order or decision until the final decree is passed in a case sent to the circuit court by a mandate. (United States v. Fossatt, 21 How. 445.) No appeal will lie from an order disbarring an attorney (Ex parte J. S. Robinson, 19 Wall. 513); or from an order refusing to allow a person to intervene and be nade a party (Ex parte Cutting, 94 U. S. 14); or from an order refusing to set aside a decree (Brockett v. Brockett, 2 How, 238; McMicken v. Perin, 18 How. 507; Wylie v. Coxe, 14 How. 1), for an application to set aside a deree and except to the master's report is addressed to the discretion of the ourt (Terry v. Commercial Bank, 62 U. S. 454); or from an order refusing o grant a rehearing (Cambuston v. United States, 95 U. S. 285); or from n order permitting a receiver to make a certain contract. (La Crosse Railroad Bridge, 2 Dill. 465.) Nor can an order sustaining a demurrer to bill of complaint be appealed from, unless it dismisses the bill (De Aras v. United States, 6 How. 103); or a decree of the circuit court entered accordance with a mandate from the Supreme Court. (Humphrey v. Baker, 103 U. S. 736.) No appeal lies from an order of the circuit court efusing to release a party on a writ of habeas corpus (In re Phillip Hench, 5 Blatchf, 414); nor from an order refusing to compel the marshal to xecute a deed to a purchaser under an execution issued upon a judgment t law and directing the purchaser to pay all costs, for it is an order in an etion at law. (Burrow v. Marshall, 15 Wall. 682.) From a decree of the rcuit court affirming the decree of the district court enjoining proceedgs under a treasury warrant of distress, no appeal will lie to the Supreme ourt. (United States v. Nourse, 6 Peters, 470.) An order attaching a efendant for refusing to execute a conveyance as directed by court canot be appealed from. (McMicken v. Perin, 20 How. 133.) When execury process for the sale of property under a mortgage is in the nature of decree of foreclosure and sale, and only allowable after notice to the btor, an appeal may be taken therefrom. (Martin v. Lalley, 17 Wall. 14.) he defendant cannot appeal from a decree dismissing a bill with costs ter its reversal and before the mandate is entered. (Corning v. Troy on & Nail Factory, 15 How. 451.) A decree for costs alone, without varding either profits or damages to the complainant, cannot be appealed om. (Elastic Fabric Co. v. Smith, 100 U. S. 110.) Where an answer sets o two defenses and prays to be dismissed with costs, a decree so dismissg the bill cannot be appealed from by the defendant, although it sustains ly one defense. (Corning v. Troy Iron & Nail Factory, 15 How. 451.)

Final decree.-A decree directing a certain amount to be brought into court within a certain time, with a warning that in default thereof a receiver will be appointed, is a final decree. (Wabash & Erie Canal v. Reers, 1 Black. 54.) A decree dissolving an injunction which restrains a trustee from selling under a deed of trust, and instructing him to sell and bring proceeds into court to abide further order, is a final decree. (Railroad Company v. Bradleys, 7 Wall. 575.) An appeal lies from a decree directing a trauster of stock, for it is final, although it directs an account to be taken of the amount paid and to be paid therefor, and the dividends accrued thereon. (Thompson v. Dean, 7 Wall. 342.) An appeal may be taken from a decree designing to carry a decree of the Supreme Court into execution, when the mandate has been misunderstood or misconstrued to the prejudice of either party. (Perkins v. Fourniquet, 14 How. 328; Railroad Co. v. Soutter, 2 Wall. 440) A decree, although not in terms disposing of a cross-bill, is final if it declares equity to be with the complainant, and settles all legal rights involved in the pleadings, even though either party is allowed such further order as may be necessary for the execution of the same. (French v. Shoemaker, 12 Wall. 86.) No appeal will lie upon a decree upon a cross-bill made prior to a final decree to the original bill, for such decree is merely interlocutory. But where the rights of the defendant as settled by a decree on the cross-bill are not preserved by the final decree, he may appeal therefrom. (Ex parte Railroad Co., 95 U. S. 221.) A decree either maintaining or dismissing a cross-bill cannot be appealed from. (Ayers v. Carver, 17 How. 591.) A decrce which decides the right to the property in contest, and directs it to be transferred from the defendant to the complainant or directs it to be sold, or directs the payment of a certain amount to the complainant by the defendant, and the complainant is entitled to have the decree immediately enforced, is final, and can be appealed from, although it provides for a reference to a master in order to settle the accounts between the parties. (Forgay v. Courad, 6 How. 201.) A decree entered against a defendant, after striking out an answer for failure to perform an order of the court relating thereto, may be appealed from. (Fuller v. Claflin, 92 U. S. 14.) Where a decree confirms a report of a sale made under a decree to foreclose a mortgage, an appeal will lie therefrom (Orchard v. Hughes, 1 Wall. 73); and an appeal will lie from an order which confirms such sale (Butterfield v. Usher, 91 U. S. 246; Sage v. Railroad Co., 96 U. S. 912); and an appeal will also lie from an order refusing to confirm a sale on the application of the purchaser. (Blossom v. Railroad Co., 1 Wall. 655.) A mortgagee may appeal from a decree for a sale, where the finding of the circuit court of the amount due under a mortgage is not satisfactory to him. (Bronson v. Railroad Company, 2 Black, 524.) All prior decrees in the case are taken up for review by an appeal from the final decree. (Crosby v Buchanan, 23 Wall. 420.) A decree. to be final for the purposes of appeal, must leave the case in such a condition that, if there be an affirmance, the court below will have nothing to do but to execute the decree it has already entered. (Dainese v. Kendall, 119 U. S. 53; Mower v. Fletcher 114 U S. 127.)

Not final-Where a decree affirms a decree of the district court without taxation of costs and without the amount for which it is rendered, an appeal will not lie therefrom, for it is not final. (Wheeler v. Harris, 13 Wall. 51.) Whenever an inquiry as to matters of law or fact is directed preparatory to a final decision, a decree is not final. When ministerial duties only are to be discharged, though that be to ascertain an amount due, and the whole controversy has been determined, the decree is final and is appealable (Beebe v. Russell, 19 How. 283); but a decree deciding who are heirs and referring the cause to a master to state an account for a distribution of the property (Craighead v. Wilson 18 How. 190), or a decree directing certain property to be conveyed by the defendant, and referring the case to a master to take an account of the rents and profits, are not final decrees. (Beebe v. Russell, 19 How 283.) No appeal will lie

com a decree declaring void an assignment for the benefit of creditors, nd referring the cause to a master to take an account of the property. Pulliman v. Christian, 6 How. 209.) A decree referring the case to a aster to take an account from evidence and the examination of the pares, and to make allowances affecting the rights of parties, or to partition roperty and report the results, is not a final decree. (Ogilvie v. Knox ns. Co., 2 Black, 539; Perkins v. Fourniquet, 6 How. 206: Farrelly v. Woodfolk, 19 How. 288: Humiston v. Stainthorp, 2 Wall. 106; Green v. isk, 103 U. S. 518.) A decree directing the payment of money into court, the delivery of property to a receiver or trustee for the purpose of reserving it or keeping it within the control of the court until the ghts of the parties can be determined, is interlocutory. (Forgay v onrad, 6 How. 201.) A decree against an executor awarding a certain m to a residuary legatee, and directing that sums thereafter collected om debts shall be paid in for distribution, is not final, and no appeal es therefrom. (Young v. Smith, 15 Peters, 287.) No appeal lies from a ecree for a sale of property to enforce a lien without ascertaining the operty nor the amount of debt, for the decree is not final. (Railroad ompany v. Swasey, 23 Wall. 405.) Where a decree dissolves an injunction ithout dismissing the bill, it is not a final decree (McCollum v. Eager, 2 ow. 61; Thomas v. Wooldridge, 23 Wall. 283); and it is not the subject of appeal. (Hiriart v. Ballou, 9 Peters, 156.) A decree retaining a bill ought to enjoin a judgment, and directing a new trial and continuing e injunction until the verdict of the jury is made known, is not a final cree. (Lea v. Kelly, 15 Peters, 213.) A person intervening simply for e purpose of appealing from a decree cannot object to orders made prior the decree, where he took no appeal from them. (Sage v. Central Railad Co., 99 U. S. 334.) No opposition can be heard by a party who does t appeal (Mount Pleasant v. Beckwith, 100 U. S. 514); nor can excepons taken to a master's report by such party be considered. (Rubber Co. Goodyear, 9 Wall. 786; S. C., 2 Fish. 499; S. C., 2 Cliff. 351.) The excepon must be filed in the circuit court or the objection cannot be consided. (Brockett v. Brockett, 8 How. 681; West v. Smith, 8 How. 402; nsman v. Parkhurst, 18 How. 289; McMicken v. Perin, 18 How. 507; ount Pleasant v. Beckwith, 100 U. S. 514.) An objection to the jurisdicn of the circuit court on the ground of the citizenship of the defendts must be limited to those only who appealed. (Shelton v. Tiffin, 6 w. 163.) Where an objection that no replication has been filed to the swer is not taken in the circuit court, it will be deemed to be waived. ements v. Moore, 6 Wall. 299; Fritz v. Stover, 22 Wall. 198.) Excepus are not waived by suing out a writ of error before the signature of judge is obtained where they were reserved at the trial. (Hunnicutt Peyton, 102 U. S. 333.) The action of the circuit court upon a motion a new trial on a verdict upon issues sent to a court of law cannot considered when the evidence is not reported with the verdict. att v. Starke, 101 U. S. 247.) If no exception is taken, neither charge of the court nor the order granting or refusing a new trial is ersible. (Railroad Co. v. Heck, 102 U. S. 120.) An objection not taken he court below cannot be considered. (Wilson v. McNamee, 102 U. S. ) No notice can be taken of testimony permitted to be given orally in circuit court unless it or its substance is stated in writing and made a ; of the record. (Blease v. Garlington, 92 U. S. 1; Conn, v. Penn., 5 eat. 424.) Where testimony objected to is ruled out it must be sent up the record in order to have the ruling considered. (Blease v. Garton, 92 U. S. 1.) Where the parties have consented to a decree, an ection to the misjoinder of parties complainant cannot be reviewed. ingston v. Woodworth, 15 How. 546.) In an appeal, an allowance of ch is obtained as between himself and other parties by a party, he not ask for any modification of the decree to the prejudice of parties as hom he procured an order of severance, thus making them no parties

Final decree.-A decree directing a certain amount to be brought into court within a certain time, with a warning that in default thereof a receiver will be appointed, is a final decree. (Wabash & Erie Canal v. Reers, 1 Black. 54.) A decree dissolving an injunction which restrains a trustee from selling under a deed of trust, and instructing him to sell and bring proceeds into court to abide further order, is a final decree. (Railroad Company v. Bradleys, 7 Wall. 575.) An appeal lies from a decree directing a trauster of stock. 1or it is final, although it directs an account to be taken of the amount paid and to be paid therefor, and the dividends accrued thereon. (Thompson v. Dean, 7 Wall. 342.) An appeal may be taken from a decree designing to carry a decree of the Supreme Court into execution, when the mandate has been misunderstood or misconstrued to the prejudice of either party. (Perkins v. Fourniquet, 14 How. 328; Railroad Co. v. Soutter, 2 Wall. 440) A decree, although not in terms disposing of a cross-bill, is final if it declares equity to be with the complainant, and settles all legal rights involved in the pleadings, even though either party is allowed such further order as may be necessary for the execution of the same. (French v. Shoemaker, 12 Wall. 86.) No appeal will lie upon a decree upon a cross-bill made prior to a final decree to the original bill, for such decree is merely interlocutory. But where the rights of the defendant as settled by a decree on the cross-bill are not preserved by the final decree, he may appeal therefrom. (Ex parte Railroad Co., 95 U.S. 221.) A decree either maintaining or dismissing a cross-bill cannot be appealed from. (Ayers v. Carver, 17 How. 591) A decrce which decides the right to the property in contest, and directs it to be transferred from the defendant to the complainant or directs it to be sold, or directs the payment of a certain amount to the complainant by the defendant, and the complainant is entitled to have the decree immediately enforced, is final, and can be appealed from, although it provides for a reference to a master in order to settle the accounts between the parties. (Forgay v. Courad, 6 How. 201.) A decree entered against a defendant, after striking out an answer for failure to perform an order of the court relating thereto, may be appealed from. (Fuller v. Claflin, 92 U. S. 14.) Where a decree confirms a report of a sale made under a decree to foreclose a mortgage, an appeal will lie therefrom (Orchard v. Hughes, 1 Wall. 73); and an appeal will lie from an order which confirms such sale (Butterfield v. Usher, 91 U. S. 246; Sage v. Railroad Co., 96 U. S. 912); and an appeal will also lie from an order refusing to confirm a sale on the application of the purchaser. (Blossom v. Railroad Co., 1 Wall. 655.) A mortgagee may appeal from a decree for a sale, where the finding of the circuit court of the amount due under a mortgage is not satisfactory to him. (Bronson v. Railroad Company, 2 Black, 524.) All prior decrees in the case are taken up for review by an appeal from the final decree. (Crosby v Buchanan, 23 Wall. 420.) A decree. to be final for the purposes of appeal, must leave the case in such a condition that, if there be an affirmance, the court below will have nothing to do but to execute the decree it has already entered. (Dainese v. Kendall, 119 U. S. 53; Mower v. Fletcher 114 U S. 127.)

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