Opinion
Submitted October 9th, 1883. Decided October 29th, 1883.
Appeal — Appeal Bond — Certiorari. The authority conferred by R.S., § 1000, to certify to the responsibility of an obligor on an appeal bond cannot be delegated. After close of term, citation must issue and be served before the security can be approved and the appeal completed so as to give jurisdiction above.
Mr. F.E. Williams for appellant.
A receiver was appointed in a suit in equity commenced below for the foreclosure of a railway mortgage. One Haskins, in the employ of the receiver, struck his head on the timber of a bridge while on duty on a train in motion, and was killed. Leave was granted to his widow to prosecute her claim for damages in the foreclosure suit. After hearing, the claim was disallowed. Appeal taken, and the case submitted by appellant, there being no appearance for the appellees.
We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the 14th of June, 1879, and at the foot of the entry is the following: "Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days." A copy of what purports to be an appeal bond, filed on the 3d of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Sec. 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U.S. 724, 726. If the appeal is allowed in open court the security may be taken by the court, and no citation is necessary, but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co., 96 U.S. 712, 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice.
The appeal is dismissed for want of jurisdiction.