[771] of it, before he had made this arrangement, and to enforce it would prejudice them. That motion was heard in this court long enough to have settled a common case. The court said to these parties, if each of you will enter into bonds to pay all costs from this time forward to be adjudged against you, or the appellee, you shall be permitted to intervene and be heard. They were heard, and they made all the defense that was made against Craig's claim. In October last this court decided the case in favor of Craig, and against Leitensdorfer's representatives. The costs were taxed by the clerk, and these parties have neglected to pay them. We are of opinion that they must pay them, and we are of opinion that this court has power, and it is its duty, to enforce the payment without remitting the payees in these bonds to another suit in some other court. We, therefore, make an order that an attachment issue against Mrs. King and her sureties, and Mr. Allen and his sureties, to compel payment of the amount of the taxed costs, unless they do pay it before the last day of this term. This is a new question, and a more elaborate opinion may be submitted before the end of the term, but this order is made now because the parties ought to have an opportunity to pay, and we make the order now that they pay the costs, and that a writ of attachment issue if they do not pay before the end of this term.

The case is cited and approved in Bridges v. Sperry, 95 U. S. 401, where the facts did not appear, but the record not being complete, the court presumed that the facts had been made to appear.

Again, in Robertson v. Cease, 97 U. S. 646, this court remanded a cause, with leave to the plaintiff to amend, so as to show the jurisdictional facts.

This last case is cited in Bors v. Preston, 111 U. S. 263.

That case cites Morgan v. Gay, 19 Wall. 81 (86 U. S.) as the precedent for this remand with leave to amend. This case was, however, preceded by Ex parte Bradstreet, 7 Pet. 847, and in this last named case the right of the party to give evidence here is expressly recognized by the court.

The court will not avail itself of any such defect or omission to the prejudice of justice. In the cases of Wells v. Wilkins and Johnson v. Wilkins, 118 U. S. 230 and 228, the court deny the motion on the ground of delay. But here we have come on the second motion day after dismissal. A case will be postponed to give opportunity to file affidavits.

The Grace Girdler, 6 Wall. 441.
No appearance for appellees.

Mr. Justice Miller announced the decision as follows:

This case was dismissed by the court on April 1888, because there was no evidence of there being a sufficient amount in controversy to give this court jurisdiction. A motion is now made to reinstate it, and affidavits submitted on the part of the appellant intended to show that the

BURN et al.

Motion to reinstate cause.

dictional amount, and a motion being made instate the case on unsatisfactory affidavits as to value, and the opposite party not having had opportunity to produce counter affidavits, the court

orders the motion continued until the next term

with leave to either party to file additional affi

davits.

[No. 199.] Submitted April 2, 1888. Dismissed April 9, 1888. Motion to reinstate, April 26, 1888. Motion ordered continued April 30, 1888. Appeal from the District Court of the United States for the Eastern District of Arkansas. Mr. J. B. Heiskell, for appellant. No counsel appearing for appellees.

This motion to reinstate the case is, therefore, continued until the next term of the court, with leave for either party to file additional affidavits on the subjects.

REUBEN P. SEGRIST et al., Piffs. in Err., v. [773] WILLIAM B. CRABTREE, Deft. in Err.

Service of citation.

That the citation was served and made returnable less than thirty days after the writ of error was granted is not a sufficient ground to dismiss such writ.

[No. 386.]

1888.

Mr. J. B. Heiskell, in support of the motion to reinstate, for appellant, presented affidavits of the value of the property in dispute and made the following points:

In the case of the Pittsburgh etc. R. R. Co. v. Ramsey, 22 Wall. 322, the court, from the conduct of the parties, the record being lost and only imperfectly supplied, presumed the facts to give jurisdiction.

In error to the Supreme Court of the Territory of New Mexico. Motion to dismiss on ground that citation was not served thirty days before the return day of the writ. Motion denied.

Mr. J. G. Zachry, for the motion:

The citation in this case was made returnable on the second Monday in October, 1885. Service was bad on the attorneys for Crabtree on [774] September 16, 1885. The time intervening between the date of service and the return of the citation was less than thirty days, and the notice to the defendant in error, Crabtree, was not sufficient. U. S. Stat. §999.

Mr. O. D. Barrett, in opposition: The facts stated in the motion show that plaintiffs in error have fully complied with the fifth section of the eighth rule of this court, which simply provides that the citation be served before the return day of the writ. It was so served.

Mr. Justice Miller announced the decision as follows:

This is a motion to dismiss, the ground for which is that the citation was served and made returnable less than thirty days after the writ was granted. We do not think that is a sufficient ground to dismiss the writ of error, whatever may be the ground for relief.

ALFRED MARCHAND, Piff. in Err., v. JOSEPHINE A. LIVAUDAIS, Wife of Chas. Lafitte, Deft. in Err.

Motion to dismiss.

Where, in an action in the U. S. Circuit Court in Louisiana, against a wife and her husband, upon notes made by her, a judgment was rendered against the plaintiff, who thereupon sued out a writ of error to this court, to which writ the wife alone is made a party and a citation has been served on the husband,-Held, that the citation to him is sufficient to bring him here to aid his wife in the writ of error, and a motion to dismiss the case is denied.

Error to the Circuit Court of the United States for the Eastern District of Louisiana. Motion to dismiss. Denied.

Alfred Marchand, plaintiff in error here, brought an action at law against the defendant, Josephine A. Livaudais, and her husband, Charles Lafitte, declaring upon certain notes alleged to have been executed by Mrs. Lafitte, with the authority and consent of her husband. The husband was an absolutely necessary party to this suit, under article 118 of the Code of Practice of Louisiana. A verdict and judgment was rendered against the plaintiff, who sued out a writ of error to this court to which writ the wife alone is made a party. She alone is named in the writ as the party defendant. She alone was cited in error, and she alone is named in the bond given to perfect the writ of error. The present motion was heretofore made in this cause to dismiss the writ of error herein contained; but as the record was not then printed, this court denied the same, with leave to the mover to renew it. After this order was entered by this court, the plaintiff in error appeared in the United States Circuit Court for the Eastern District of Louisiana and presented to that court a petition asking leave to cite Charles Lafitte, the husband of the defendant. This petition was ex parte and without any notice to opposite counsel.

The citation in error was issued direct to Charles Lafitte, was served upon him, and the plaintiff in error has brought a copy of that petition and citation and filed same in this court, asking leave to make the same a part of the record herein, which motion the court did not allow.

Messrs. Edgar H. Farrar and Ernest B.

Kruttschnitt, for defendant in error in favor of motion:

It was just as necessary to make the husband a party defendant to the writ of error as it was to make him a party defendant on the original record.

Lanoue v. Reed,7 La. 112; Wells v. Scott, 10 Id. 401; Laurence v. Burris, 12 La. Ann. 843.

The citation of the husband under the cir cumstances mentioned in the above statement cannot avail the plaintiff in error.

Messrs. C. W. Hornor and W. S. Benedict, for plaintiff in error in opposition:

The notes being duly executed in conformity to the Louisiana Statute are binding on the wife and have the same effect as if made by a "feme sole."

Rev. Stat. La. 1870, p. 481, §§ 2432, 2433, 2434; La. Code of 1870, arts. 126, 127, 128. This statute governs the case. It constitutes the married woman a feme sole. The husband's authorization to his wife to defend was absolutely needless.

Stewart v. Boyle, 23 La. Ann. 83.

The fault is not fatal.

R. S. U. S. 1005; Gumbel v. Fitkin, 118 U. S. 545, and cases there cited.

The husband is not made a party to this motion.

Fairex v. Bier, 37 La. Ann. 821.

Mr. Justice Miller announced the following decision:

A motion is made to dismiss this cause because Charles Lafitte, the husband of the defendant in error, is not named in the writ of error, as a party to the proceedings. The judgment was in favor of his wife Josephine, and he was a party authorizing her in the suit below, according to the forms of the Louisiana law, which require that the husband must be joined with the wife when she sues, whether he has any interest or not; and the plaintiff in error has served a citation on Lafitte, although he was not named in the writ of error. It may be doubtful whether Lafitte is a necessary party in this court, seeing he was not a party to the judg ment. If for conformity's sake he ought to have been brought here to aid his wife in the writ of error, the citation to him is sufficient for that purpose.

The motion to dismiss the case is overruled.

WESTERN AIR LINE CONSTRUCTION CO., Piff. in Err., . WILLIAM A. MCGIL LIS et al., Defts. in Err.

Writ of error-when not supersedeas.

1. A writ of error which is not sued out nor served within sixty days after the rendition of the judgment, which is the subject of the writ, does not operate as a supersedeas.

2. Where a writ of error does not operate as a supersedeas, no motion to vacate supersedeas or for an order declaring that the writ does not operate law whether it operates as a supersedeas. as such, is necessary or proper. It is a matter of [No. 1283.]

Submitted April 9, 1888. Decided April 16, 1888.

In error to the Circuit Court of the United States for the Northern District of Illinois. Motion to vacate supersedeas or for an order

[777]

declaring that the appeal bond filed does not operate as a supersedeas. Motion denied.

Mr. John S. Cooper, for the motion: The service of a writ of error or the perfection of an appeal within sixty days after the rendering of the judgment or decree is an indispensable prerequisite to a supersedeas. Kitchen v. Randolph, 93 U. S. 92. Mr. E. Walker, in opposition:

There is no supersedeas in this cause and nothing in the motion of the defendant in error that the court can act upon.

Tiernan v. Booth, 9 Biss. 499; Goddard v. Ordway, 94 U. S. 672.

Mr. Justice Miller announced the decision, as follows:

This is a motion to vacate what is called a supersedeas. The papers show that the writ was neither sued out nor served within sixty days after the rendition of the judgment which is the subject of the writ of error. It follows as a matter of course that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue, unless it may become necessary from some peculiar circumstances. The statute declares that, when, within sixty days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond, within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, sball operate as a supersedeas. It is a matter of law whether it operates as a supersedeas.

Dec. 19, 1887. Dismissed for the want of prosecution.

GORDON MCKAY et al. Trustees, etc. v. ED. [786] MUND M. STOWE et al. [No. 9.]

Appeal from C. Ct. of U. S. for Dist. of Mass.

Mr. Elias Merwin, for appellants. Mr. J. E. Maynadier, for appellees.

Oct. 18, 1887. Dismissed as per stipulation.

HUGH T. MURRAY et al. v. JAMES K. PARDEE. [No. 13.]

In error to Supreme Ct. of Montana. Mr. E. W. Toole, for plaintiffs in error. No counsel for defendant in error.

Oct. 18, 1887. Dismissed with costs pursuant to the 19th Rule.

KANSAS PACIFIC R. Co. . BENJAMIN W. LEWIS, JR. [No. 14.]

Appeal from C. Ct. of U. S. for Dist. of Kan.

John F. Dillon, and J. M. Wilson, for appelMessrs. Samuel Shellabarger, J. P. Usher,

lant.

No counsel appeared for the appellee. Nov. 3, 1887. Submission of this cause set aside and appeal dismissed with costs, on appellant's motion.

[787]

[784]

BALTIMORE AND POTOMAC R.R.CO. . DISTRICT [780] of COLUMBIA. [No. 35.]

In error to Supreme Ct. of Dist. of Col.
Mr. Henry E. Davis, for defendant in error.
Mr. Enoch Totten, for plaintiff in error.

Oct. 26, 1887. Dismissed with costs for fail

the term to which the writ of error was returnable.

JAMES M. KENNEDY et al., as County Comrs.

Appeal from C. Ct. of U. S. for Dist. of Colorado.

April 30, 1888. On consideration of the motion for an attachment against Leann S. King, as principal, and Charles F. R. Hayward and Andrew D. Wilson, as sureties, and Thomas J. Allen, as principal, and John N. Smith and Charles R. Lockridge, as sureties, on two certain bonds given for costs in this court in this cause, and of the arguments of counsel thereupon had as well in support of as against the same, It is now here ordered by the court that the persons above named pay the taxed costs in this cause which have accrued since said bonds were approved, amounting to the sum of $1,106.65, on or before the 14th day of May, 1888; and unless this sum is so paid, a writ of attachment against them will issue returnable on the first day of the next term of this court.

[783] Ex Parte: In the Matter of ALBERT GRANT, Petitioner. [No. 2, Orig.]

Petition for a writ of mandamus.
Messrs. B. F. Butler, S. S. Henkle, William
Lawrence and H. W. Blair, for the petitioner.
No one opposing.

[No. 37.]

Appeal from C. Ct. of U. S. for Dist. of Neb.

Messrs. A. J. Poppleton, J. M. Thurston, and John F. Dillon, for appellants. No coun sel for appellees.

Oct. 26, 1887. Dismissed with costs on motion of appellants.

JAMES R. BISSELL v. NATIONAL LAFAYETTE
AND BANK OF COMMERCE. [No. 58.]
In error to C. Ct. of U. S. for E. D. of Mo.
Mr. Upton M. Young, for plaintiff in error.
Mr. J. E. McKeighan, for defendant in error.
June 27, 1887. Dismissed pursuant to the
28th Rule.

UNION PACIFIC R. Co. v. C. M. DYCHE.
[No. 59.]

In error to Supreme Ct. of Kan.
Mr. John F. Dillon, for plaintiff in error.
Mr. C. M. Dyche, in pro. per.

Nov. 8, 1887. Judgment reversed with costs and cause remanded with instructions to reverse the judgment of the District Court of Riley County, Kansas, as per stipulation, on motion of Mr. J. M. Wilson, in behalf of coun

sel.

[784]

[794]

[792]

[783]

[794]

MEMPHIS & LITTLE ROCK R. R. Co. (as reor- [786] ganized) v. ROBERT K. Dow et al., Trustees,

AND

ROBERT K. Dow et al., Trustees, o. MEMPHIS & LITTLE ROCK R. R. Co. (as reorganized). [Nos. 115, 164.]

Appeals from C. Ct. of U. S. for E. D. of Ark. Messrs. John F. Dillon and Wager Swayne,

[No. 81.]

Appeal from C. Ct. of U. S. for D. of R. I. Mr. Thomas Wm. Clarke, for appellant. Mr. Benjamin F. Thurston, for appellees.

Nov. 29, 1887. Dismissed with costs pursuant to the 10th Rule.

for the trustees. Dec. 15, 1887. Dismissed as per stipulation.

JAMES W. JENKINS et al. v. ANN ARBOR AG [794] RICULTURAL Co. [No. 123.]

Appeal from C. Ct. of U. S. for E. D. of

In error to C. Ct. of U. S. for Dist. of Ind. Mr. Thomas J. O'Brien, for plaintiff in error. No one opposing.

Dec. 1, 1887.

Dismissed with costs by authority of the plaintiff in error.

[780] HERMANN R. BALTZER et al. v. HENRY LOUIS BISCHOFFSHEIM. [No. 91.]

Appeal from C. Ct. of U. S. for S. D. of N. Y.

Messrs. C. A. Seward and Charles M. DaCosta, for appellants. Mr. Joseph H. Choate, for appellee.

Oct. 20, 1887. Dismissed as per stipulation. [792] TEXAS & ST. LOUIS R. Co. in MISSOURI and ARKANSAS v. CLEVELAND ROLLING MILL CO. [No. 93.]

Mr. Charles F. Burton, for appellants. Messrs. Ephraim Banning and Thomas A. Banning, for appellee.

Aug. 22, 1887. Dismissed pursuant to the 28th Rule.

LINUS M. PRICE. LOUIS H. MEYERS et al., [789] Trustees, et al. [No. 124.]

Appeal from Supreme Ct. of Utah. Messrs. John F. Dillon and Wager Swayne for appellant. Messrs. Lyman K. Bass, C. W. Bennett and Robert Harkness, for appellees. Oct. 31, 1887. Dismissed as per stipulation on motion of Mr. B. H. Bristow, in behalf of counsel.

Mr. R. M. Morse Jr., for appellants. Messrs. W. G. Russell and Geo. Putnam, for appellees. Jan. 11, 1888. Decree affirmed without costs as per stipulation.

Feb. 2, 1888. Decree affirmed from the bench, the appellants to pay the costs of their respective appeals in this court. Cost of printing testimony improperly embodied in the transcript of the record, and clerk's fees for supervising

[785]

WOOD. [No. 136.]

Appeal from C. Ct. of U. S. for Dist. of N. J. Mr. J. D. Bedle, for appellants. Mr. Causten Browne, for appellee. Jan. 19, 1888. Dismissed with costs as per stipulation.

EDWARD CAMERON KIRK et al. v. ELKINS MFG. AND GAS Co. [No. 138.]

Appeal from C. Ct. of U. S. for E. D. of Pa. Mr. Hector T. Fenton, for appellants. Mr. Jno. G. Johnson, for appellee.

Jan. 9, 1888. Dismissed with costs on motion of Mr. William A. McKenney, in behalf of counsel for appellants.

157.

Messrs. Walter H. Smith and E. C. Ford, for plaintiff in error. Mr. George Norris, for defendants in error.

Feb. 6, 1888. Dismissed for the wt of jurisdiction. Motion to reinstate, Feb. 13, 1888. The said Glacier Mountain Silver Mining Company, plaintiff in error, now comes and moves the court to set aside its order made on the 6th of February, 1888, dismissing said cause for want of jurisdiction, and for leave to show that the property in controversy in said cause

TER. [No. 142.]

does exceed $5,000 in value, and therefore that this court has jurisdiction of this cause. WALTER H. SMITH, Attorney for plaintiff in error.

DISTRICT OF COLUMBIA,

County of Washington,

}

S8:

I, Oscar H. Curtis, being first duly sworn, say that I reside at Oxford, Chenango County, New York; that I am well acquainted with the Silver Gate Tunnel claim, situate at the base of the Glacier Mountain, in Snake River mining district, in Summit County, Colorado, being the same premises and property that is now in controversy in the case now pending in the Supreme Court of the United States, wherein the Glacier Mountain Silver Mining Company is plaintiff in error and J. Frank Willis et al.

[788]

[No. 146.]

In error to C. Ct. of U. S. for E. D. of Wis. Mr. B. R. Miller, for plaintiffs in error. Mr. F. W. Cotzhausen, for defendants in error.

Nov. 15, 1887. Dismissed with costs as per stipulation, on motion of Mr. Eppa Hunton, in behalf of counsel.

October Term, 1887. I at one time was the owner of said property. I purchased it at sheriff's sale and paid therefor over twelve thousand dollars. I know that more than twenty thousand dollars has already been expended in developing said property, and I have no hesitation in saying that the value of said premises and property on the first day of July, 1883, and at all times since that date, exceeded the sum of

[No. 152.]

In error to C. Ct. of U. S. for E. D. of Mo. Mr. Wm. H. Bliss, for plaintiff in error. Mr. Jeff. Chandler, for defendants in error.

Jan. 31, 1888. Dismissed with costs pursuant to the 10th Rule.

[789] THOMAS C. POWER et al. v. ISAAC G. BAKER et al., Owners of the Steamer "COLONEL MCLEOD," AND ISAAC G. BAKER et al., Owners of the Steamer "COLONEL MCLEOD" v. THOMAS C. POWER et al. [Nos. 157, 307.] Appeals from the C. Ct. of U. S. for Dist. of Minn.

Messrs. Edward G. Rogers, C. D. O'Brien and W. H. Bliss, for Thomas C. Power et al. Messrs. J. H. Davidson and H. L. Williams, for Isaac G. Baker et al, etc.

OSCAR H. CURTIS. Subscribed and sworn to before me this 7th day of February, 1888. [SEAL.]

JAMES D. MAHER, Notary Public. [Endorsed:] Supreme Court U. S. 1887, October Term. No. 166. The Glacier Mountain Silver Mining Company, pl'ff in error, vs. J. Frank Willis et al. Motion to set aside judgof Oscar H. Curtis as to value of property in ment of dismissal of Feb. 6, 1888, and affidavit dispute.

[Stamped:] Office Supreme Court U. S. Filed Feb. 7, 1888. James H. McKenney, clerk.

Mr. Chief Justice Waite:

The further consideration of this motion is postponed until March 19, and the plaintiff in error is directed to cause notice of this order and of the motion with a copy of all affidavits

[475]