59 U.S.

530
18 How. 530
15 L.Ed. 511

ROBERT HUDGINS ET AL. APPELLANTS,

v.
WYNDHAM KEMP, ASSIGNEE IN BANKRUPTCY OF
JOHN L. HUDGINS.
ELLIOTT W. HUDGINS ET AL. APPELLANTS,
v.
WYNDHAM KEMP, ASSIGNEE IN BANKRUPTCY OF
JOHN L. HUDGINS.
December Term, 1855

THESE two cases were appeals from the circuit court of the United States
for the eastern district of Virginia. Being exactly alike, it will only be
necessary to state the first.
A motion was made to dismiss the first case upon the following grounds,
and was argued by Mr. Robinson, and Mr. Pallon in support thereof, and
opposed by Mr. Johnson and Mr. Lyons.
The counsel for the motion filed the following certificate:
I, Philip Mayo, clerk of the United States court for the fourth circuit and
eastern district of Virginia, do certify that, in a suit in chancery in the said
court between Wyndham Kemp, assignee in bankruptcy of John L.
Hudgins, a bankrupt plaintiff, and Elliott W. Hudgins and John L.
Hudgins, defendants, a final decree was rendered on the twenty-seventh
day of June 1855; that the term of the court at which the same was
rendered, ended on the twenty-eighth day of that month; that afterwards in
the vacation of the said court, to wit, on the 16th of October, 1855, there
was filed in my office, a writing under the hand of R. B. Taney, judge of
the said court, bearing date on the thirteenth of that month, whereby it was
'ordered that the appeal in this case, which was taken in open court when
the decree was pronounced, be entered accordingly on the order book of
the court of the last term, to wit: of May term, 1855;' that in view of this
order, the clerk on its being so filed wrote on the order book of the court,

at the foot of the decree of the 27th of June, 1855, the following words:
'And from the foregoing decree the defendants prayed an appeal, which
was granted them on giving bond and security to be approved by the court
in double the amount of said decree, conditioned for their prosecuting the
said appeal;' and that at the time of filing the said vacation order of the
judge, there was also filed in the clerk's office, bond and security
approved by the said judge in double the amount of said decree,
conditioned for their prosecuting the said appeal. Given under my hand
this 21st day of April, 1856.
P. MAYO, Clerk.
And then made the following points for dismissal:
I. It cannot take jurisdiction of the appeals as having been allowed by the
court, when the record as it stood at the end of the term, and as it was then
signed by the presiding judge, shows no allowance of such appeals. In
Burch, & c. v. White, 3 Rand. 104, cited in 1 Rob. Pract. 642, (old edit.,) it
appeared that at the preceding term the appeal was prayed and bond and
security then given; but the clerk of the court had omitted to enter on the
records thereof the appeal so granted. The supreme court of appeals of
Virginia decided that this omission could not be remedied by an
amendment of the record made after the term had ended; and the appeal
was therefore dismissed. Though the appeal bond was filed with the clerk,
it was considered there was nothing in the record to amend by. A fortiori,
it must be so in these cases, when no appeal bond was given during the
term; and there was nothing whatever to amend by.
II. If the appeal had been duly allowed, the appeal bond has not been
properly given.
Under the act of congress of March 3, 1803, (2 Story, 905,) appeals are
'subject to the same rules, regulations, and restrictions as are prescribed in
law in cases of writs of error.' One of the rules as to a writ of error is, that
it 'shall be a supersedeas and stay execution in cases only where the writ
of error is served, by a copy thereof being lodged for the adverse party in
the clerk's office, where the record remains, within ten days, Sundays
exclusive, after rendering the judgment or passing the decree complained
of.' 1 Story, 61, 23; Wallen v. Williams, 7 Cranch, 278. Now it is well
established that an appeal in chancery cannot operate as a supersedeas,
unless the appeal be perfected by giving an appeal bond within the ten
days. Adams, &c. v. Law, 16 How. 148. And it is clear that we are entitled
to process to carry these decrees into effect. S. C. 17 How. 417. But

perhaps it may be said that in other casesin cases where there is no

supersedeasthe mode of taking the security, and the bond for perfecting
it, are matters of discretion to be regulated by the court granting the
appeal; and that when its order is complied with, the whole has relation
back to the time when the appeal was prayed. The Dos Hermanos, 10
Wheat. 306. Still, if we are to take the regulation of the court granting the
appeal from its order on the record book of the court, even as it now
appears, since the alteration of the record, that order has not been
complied with; for according to that order, the appeal was granted on
giving bond and security, to be approved by the court, and the bond and
security given have not been approved by the court in term, but only by
the judge in vacation.
III. If the appeals could be allowed in vacation, and could in these cases
be regarded as so allowed, still, the appeals would be defective for want of
citation and notice. Ex parte Crenshaw, 15 Pet. 119; Villabolos v. United
States, 6 How. 90; Hogan v. Ross, 9 Ib. 602.
The propriety of the rules above insisted on, is strikingly illustrated by
what in fact took place in these cases; for here the assignee, immediately
after the term was ended, procured copies of the decrees; there was
nothing either in these copies or in the record itself to inform him of there
being appeals, no such information was afterwards obtained by means of
citation or notice, and he proceeded to make sale according to the decrees.
The counsel, in opposition to the motion to dismiss, filed the following
certificates:
I, P. Mayo, clerk of the United States court for the fourth circuit and
eastern district of Virginia, hereby certify that in the case of Wyndnam
Kemp, assignee in bankruptcy of John L. Hudgins, against Robert
Hudgins, John L. Hudgins, Elliott W. Hudgins, and Albert G. Hudgins,
lately decided in the said court, an appeal was granted the defendants
from the decree entered against them on the 27th of June, 1855, and that
their said appeal was entered among the minutes of the proceedings of
that day, but was omitted to be entered in the order book, by the
inadvertence of the clerk; but was subsequently entered therein, as of the
date when entered in the minutes; by the order of Chief Justice Taney, to
wit, Wednesday, June 27, 1855.

Given under my hand this 23d day of April, 1856.

P. MAYO, Clerk.

Filed, 2d May.

4Nos. 239 and 240.

5

In the clerk's office of the circuit court of the United States for the fourth circuit
and eastern district of Virginia.

I, P. Mayo, clerk of the circuit court of the United States for the fourth circuit
and eastern district of Virginia do hereby certify that the term of the said circuit
court at which the cases of Kemp, assignee v. Hudgins were decided, adjourned
the next day after the decrees in those cases were entered, until the next term of
the court, and that the district judge, the Hon. James D. Halyburton, had
previously declined to sit in those cases because he was a party interested in
them. And I do further certify that the bonds, required to be given on the
appeals granted in those cases, were filed in this office on the 16th day of
October 1855.

Given under my hand this 29th day of April, 1856.

P. MAYO, Clerk.

Filed, 2d May.

10

Mr. Chief Justice TANEY delivered the opinion of the court.

11

This case has been brought up to this court by appeal from the decree of the
circuit court of the United States, from the district of Virginia; and a motion is
made on behalf of the appellee to dismiss it, upon the ground that it has not
been removed in the manner the law requires, and that therefore we have no
jurisdiction over it. And certificates and statements of the clerk, outside of the
record, and given since it was certified and transmitted to this court, have been
filed as evidence of the irregularity of the removal.

12

This evidence is not admissible upon the present motion. The record
transmitted to this court, certified by the clerk of the circuit court, states that the
appeal was taken in open court. This is sufficient evidence of that fact. And
upon a motion to dismiss, as well as on the hearing on the merits, no evidence
dehors the record, as certified and returned by the clerk of the circuit court, can

be received here to impeach its verity, or to show that the certificate ought not
to have been given. The case, as therein set forth, is the case before this court.
And if from inadvertence or mistake of the clerk of the court below, or from
any other cause, the record transmitted in this case is defective or incorrect, the
errors or omissions should have been suggested in this court, and a certiorari
moved to bring up a correct and true transcript of the proceedings.
13

It is true an amendment may be made here by consent, as was done in the case
of Fletcher v. Peck, 6 Cranch, 87. And so also, where it appeared by the
certificate of the clerk that he had committed a clerical error in the transcript, in
the form in which he had entered a judgment, in ejectment, and it was evident,
from the declaration, that it was a mere clerical error, the court suffered it to
amended here, without sending a certiorari to the circuit court to have it
corrected. Woodward v. Brown, 13 Pet. 1.

14

But in the case before us, there is no consent to amend, and the errors alleged
are of a very different character, from the mere formal error in the case of
Woodward v. Brown. And if it were otherwise, still, there should have been a
motion to amend, by inserting in the transcript the certificates above mentioned
of the clerk, before the motion was made to dismiss. But no such motion has
been made, and the transcript now before the court is the one originally
certified, without any amendment here by consent or by order of the court. And
the motion is made to dismiss the case, not for any irregularity apparent in the
record, but by testimony aliunde, offered to show that the transcript is incorrect.
It is very clear that such testimony cannot be received to support this motion.
And the record, as it stands when the motion is heard, presents the case which
this court is called upon to decide; and nothing outside of it can be introduced to
affect the decision.

15

Neither is it of any importance as concerns this motion whether the appeal does
or does not operate as a supersedeas. A writ of error or appeal does not operate
as a supersedeas under the act of congress, unless security is given sufficient to
cover the amount recovered within ten days after the judgment or decree is
rendered. But yet, if the party does not give the bond within the ten days, he
may, nevertheless, sue out his writ of error or take his appeal, as the case may
be, at any time within five years from the date of the decree or judgment, upon
giving security sufficient to cover the costs that may be awarded against him in
the appellate court. And his omission to give the security in ten days is no
ground for dismissing the appeal.

16

In this case, certainly, the appeal did not operate as a supersedeas. The security
was given and approved long after the time limited by the act of congress. Nor

was any supersedeas moved for, or awarded by the circuit court, or the judge of
the supreme court, who approved the bonds. Nor could any have been awarded
by any court or judge. And, upon the expiration of the ten days, the plaintiff
had a right to proceed on his decree and carry it into execution, notwithstanding
the pendency of the appeal in this court.
17

But if a supersedeas had been awarded, this motion could not be sustained. The
motion should have been to discharge the order, not to dismiss the appeal. And
the propriety or impropriety of an order granting a supersedeas could not be
considered on a motion to dismiss. The order for the supersedeas might be
discharged, and the appeal still maintained.

18

The decision of these points dispose of the motion. But in order to avoid any
further controversy on the subject, it is proper to add that if the facts offered in
evidence were inserted in the record, they would furnish no ground for
dismissing the appeal.

19

They are substantially as follows:

20

The district judge had an interest in the issue of the case, and withdrew from
the bench, and the chief justice of the supreme court sat alone at the trial. The
decree was passed on the 27th of June, 1855, and the appellant on the same
day, in open court, appealed to this court, and his appeal was entered by the
clerk among the minutes of the proceedings of that day, by order of the court;
and on the next day, June 28, the court closed its session, and adjourned to the
next term.

21

It is the practice in the state courts of Virginia, for the clerk to make written
minutes of the proceedings in court as they occur during the day; and after the
court adjourns for the day, they are all written out in full in what is called the
order book, and presented to the court when it meets next morning, and read;
and if found to be correct, is signed by the presiding judge, as evidence that the
proceedings are therein correctly stated. This practice has been followed by the
circuit court of the United States when sitting in Virginia; and according to this
practice, it seems the clerk supposed that the appeal ought to have been entered
in the order book, but omitted it through inadvertence; and did not discover the
omission until after the term had closed. The fact was brought to the attention
of the chief justice, by a certificate from the clerk, when the appeal bonds were
presented for approval, which was in October, 1855; and when he approved the
bonds, he at the same time sent a written direction to the clerk to enter the
appeal in the order book, as having been made in open court; and as of the day

when it was actually made and entered in the minutes. It may be proper to say,
that the penalty of the appeal bond presented for approval was much larger than
necessary; because, as the appeal could not then operate as a supersedeas, the
act of congress required such security only as would cover the costs of the
appellee in case the decree should be affirmed. But it certainly could be no
ground of objection when the bond was offered for approval, that the penalty
was larger than it need have been.
22

These are the material facts, as they appear in the certificates of the clerk,
produced and relied on in the argument. And the appellees contend that the
order book is the only record of the proceedings of the court; that this record
could not lawfully be amended by the order of the judge after the term was
over; that the entry of the appeal made by his direction, is not legally a record;
and that as there is no record of an appeal in open court on the 27th of June,
1855, the clerk had no legal authority for certifying that such an appeal was
made; that his certificate on that account is erroneous; and the case, therefore,
is not removed to, and is not in this court, according to law.

23

The counsel for the appellee, in support of these objections, has referred to a
decision of the court of appeals of Virginia, and to the practice in the courts of
that State in case of appeal. The answer, however, to this argument is obvious.
The power of making amendments, and the mode of removing a case from an
inferior to an appellate court of the United States, are regulated by acts of
congress, and do not depend upon the laws or practice of the State in which the
court may happen to be held. The decisions or practice of the courts of
Virginia, cannot therefore have any influence in deciding the motion before us.

24

Neither is it necessary to inquire, whether the entry made in the order book is to
be regarded as a part of the recordor merely a memorandum to preserve the
history of the case, by entering the appeal in the book where it is usually found,
and would naturally be looked for by the party interested. In either view this
entry was not necessary to give validity to the appeal. In making the appeal, the
party exercised a legal right. It was made in open court, and the clerk had
official knowledge of the fact. And it would have been his duty, even if no
written memorandum of it had been made, to certify it to this court, when the
security was approved by the judge and the appeal allowed. And his certificate
of the fact is all that is required in the appellate tribunal. He does not certify it
as a copy from the record. The appeal is made orally, and the entry usually
made on the minutes or in the order book, is to preserve the evidence of the act,
and is not necessary to give it validity.

25

The act of congress does not require an appeal to be made in open courtor to

be in writingor entered on the minutes of the courtor to be recorded. It is

often made before a judge in vacation, when it cannot be recorded in the order
book as a part of the proceedings of the court. And the law makes no
difference, as to the form in which it is to be made, whether it be taken in court
or out of court before a judge. In either case it may be made orally or in writing.
And the only difference is, that this court has decided that where the appeal is
made in open court, during the term at which the decree is passed, no citation is
necessary to the adverse party. He is presumed to be in court, and therefore to
have notice. But when the appeal is taken out of court, the citation is necessary
to give him notice. In all other respects the same rules apply to either mode of
taking an appeal. Reilly v. Lamar, 2 Cranch, 344; Yestor v. Lenox, 7 Pet. 220.
26

The act of March 3, 1803, which authorizes the appeals, provides that they
shall be subject to the same rules, regulations, and restrictions as are prescribed
by law in cases of writs of error. And in the case of Innerarity v. Byrne, 5 How.
295, where the record transmitted to this court did not show that a citation had
been issued and served, it was held to be no ground for dismissing the case, and
that the fact might be proved aliunde. It is not necessary that all of the steps
required to give this court jurisdiction should even be on file in the court below,
and certainly need not appear to be of record in that court. Masten v. Hunter, 1
Wheat. 304.

27

We think it evident, therefore, that the want of record evidence in the circuit
court that the appeal was prayed, would be no ground of dismissal; and the
certificate of the clerk that it was so prayed, is all that is required in this court.

28

The objection that the entry on the minutes, and also in the order book,
required that the bond should be approved by the court, and that the approval
by the judge out of court is therefore not sufficient, is equally untenable.

29

No copy of the order of the judge directing the entry in the order book has been
produced. But the clerk states in his certificate that the order directed him to
enter the appeal as of the day on which the decree passed; and without doubt he
states it correctly. And in executing that order he appears to have followed the
form he had adopted in his entry on the minutes. The same form may perhaps
be used in other circuits, and is in some cases probably borrowed from the
formulas used in like cases in the state courts. But the appellant had legal rights,
and he cannot be deprived of them by any irregularity in a clerical entry.
Strictly speaking, nothing ought to have been entered either in the minutes or on
the order book as of the day the decree was passed, except the appeal itself.
And this, indeed, would appear to have been all the judge ordered. For the
appeal could not have been allowed on that day, because an order of a court, or

a judge allowing an appeal, is in effect nothing more than an order to send the
transcript of the record to the appellate court. It is the clerk's authority for
making the return to the superior court. And that order could not be legally
given until the security required by law was offered and approved. But, when
the appeal was taken, the approval of the court could not be made the only
condition upon which it should be allowed. He had a right by law to carry up
his appeal, if the security he offered was approved by the judge, out of court, in
vacation; and no entry of the clerk, and indeed no order of the court, could
deprive him of this right. Neither could the amount of the security be then
prescribed. For he had a right to produce his security within the ten days, if he
desired to do so, and thereby supersede the judgment, until the decision of this
court was had in the premises. And in order to obtain the supersedeas, the law
requires that the security given shall be sufficient to cover the whole amount of
the sum recovered against him. But, if he preferred carrying up his case without
superseding, the law does not exact security to the amount recovered. Security
is required in that case for no greater amount than will cover the costs that may
be recovered against him in the superior court. Such were the legal rights of the
appellant when he made his appeal; and he cannot be deprived of them by the
form adopted by the clerk in entering it. The approval of the security by the
judge, as it appears in the certificates offered in evidence, is sufficient, and the
objection that it was not approved by the court cannot be maintained.
30

Upon the whole, we see no ground for dismissing the appeal; and the motion to
dismiss is overruled.