Denied in Jerome v. McCarter, 21 Wall. 31, 22 L. Ed. 517, holding discretion of lower judge will not be interfered with by Supreme Court. Power to issue supersedeas to a decree in a subordinate court does not exist in Supreme Court, where appeal was not taken and proper bond filed within ten days from date of decree. Approved in New England R. R. v. Hyde, 101 Fed. 400, 41 C. C. A. 404, refusing writ, writ and bond not filed within sixty days from entry of judgment; First Nat. Bank v. McAndrews, 7 Mont. 438, 17 Pac. 556, following rule; Kitchen v. Randolph, 93 U. S. 89, 23 L. Ed. 811, reviewing history of supersedeas statutes; Bond v. South Carolina Ry. Co., 55 Fed. 188, refusing to postpone foreclosure sale where no supersedeas bond had been given on appeal from decree of foreclosure. Requirement or permission of new or additional appeal or super- Where matter in controversy was possession of railroad, interest of defendant in which had been pledged as security for five thousand dollars, upon decree for complainant, supersedeas bond for five hundred dollars is not necessarily insufficient. Approved in Kountze v. Omaha Hotel Co., 107 U. S. 389, 27 L. Ed. 613, 2 Sup. Ct. 921, holding, upon appeal from decree of foreclosure, supersedeas only covers waste and deterioration of mortgaged property. Appeal from a decree enjoining defendant from certain proceeding will not prevent the courts ordering defendant to desist from another suit in another Federal court, even though there has been given an indemnity bond on the appeal and there are new parties in the second suit. Approved in May v. Printup, 59 Ga. 135, following rule; Ex parte Dunn, 6 Sup. Ct. 309, discussing effect of writ of error as stay of proceedings. 12 Wall. 102-121,20 L. Ed. 281, FOWLER v. RATHBONES. Where several parties are engaged in same sea risk, and one, in a moment of imminent peril, makes a sacrifice to avoid impending danger, or incurs extraordinary expenses to promote safety of all, the sacrifice and expenses must be assessed proportionately upon the interests which were exposed and saved. Approved in Hobson v. Lord, 92 U. S. 400, 23 L. Ed. 616, holding the greater and more imminent the peril, the more meritorious the claim; Sonsmith v. The J. P. Donaldson, 21 Fed. 675, holding propeller which cuts loose its tow in time of peril must contribute by general average; Northwest Transp. Co. v. Continental Ins. Co., 24 Fed. 174, holding damage from voluntary stranding recoverable under policy of insurance against loss and general average; The L'Amerique, 35 Fed. 841, holding expense of unloading cargo of stranded vessel is subject of general average; Northwest Transp. Co. v. Boston etc. Ins. Co., 41 Fed. 805, allowing general average where damage resulted from storm which arose after vessel had stranded; The Roanoke, 46 Fed. 299, holding damage by water poured on cargo to extinguish fire is subject of general average. Distinguished in Ralli v. Troop, 157 U. S. 395, 39 L. Ed. 747, 15 Sup. Ct. 660, holding scuttling of vessel by port wardens in port to prevent her burning, is not case for general average; Shoe v. Low Moor Iron Co., 46 Fed. 128, no general average is permitted where voluntary stranding is no benefit to either vessel or cargo; Emery v. Huntington, 109 Mass. 436, 12 Am. Rep. 730, holding expenses for repairs occasioned by collision, made intentionally, to avoid collision in a different part of the vessel, are not properly subject of general average. Necessity for voluntary sacrifice necessary for general average. What constitutes a general average loss. Note, 14 E. R. C. 383. Repairs rendered necessary to the vessel by the ordinary perils of navigation, to enable her to prosecute her voyage to her port of destination, must be borne by the owners. Approved in Hobson v. Lord, 92 U. S. 407, 23 L. Ed. 619, allowing services of crew in general average. Where a general average bond made certain provisions relating to adjustment, jury may be instructed to render verdict for plaintiff if they find adjustment to have been according to those provisions. Approved in Norwich & N. Y. etc. Co. v. Insurance Co. of North America, 118 Fed. 309, 311, holding damage due to attempted salvage subject for general average; Conrad v. De Montcourt, 138 Mo. 323, 39 S. W. 808, arguendo. 12 Wall. 121-129, 20 L. Ed, 279, NOONAN v. BRADLEY. Supreme Court possesses no power to review its own final judgments or decrees at a term subsequent to the term when rendered. Approved in Illinois ex rel. Hunt v. Illinois C. R. R. Co., 184 U. S. 92, 46 L. Ed. 447, 22 Sup. Ct. 306, refusing to disturb finding of Circuit and Circuit Court of Appeals that structures did not extend beyond navigable point; Omaha Electric Light & Power Co. v. Omaha, 216 Fed. 854, 133 C. C. A. 52, applying rule where mandate of Circuit Court of Appeals was stayed to await directions of Supreme Court in regard to decree; King v. Mason, 60 W. Va. 612, 56 S. E. 379, discussing rule on application for writ of mandamus to compel judge to allow redemption of certain tracts of land; Tyler v. Magwire, 17 Wall. 285, 21 L. Ed. 584, holding jurisdictional question cannot be raised after case has been decided and cause remanded to State Supreme Court for final judgment; Ex parte Friday, 43 Fed. 918, a sentence given at one term cannot be set aside and a more severe one imposed at a subsequent term; Klever v. Seawall, 65 Fed. 378, 12 C. C. A. 653, rule applies to Circuit Court; Hart v. Stribling, 25 Fla. 445, 6 South. 456, whatever has been decided upon appeal cannot be re-examined upon subsequent appeal between the same parties; Goodrich v. Wilson, 135 Mass. 33, upon motion to affirm in accordance with mandate of Supreme Court, question of effect of intermediate insolvency may not be tried. Practice and procedure governing transfer of causes to Federal Where judgment has been rendered on appeal, it cannot be attacked after lapse of nine terms by a motion to certify that the appeal had abated before the rendition. Approved in dissenting opinion in The Legal-Tender Cases, 12 Wall. 603, 20 L. Ed. 329, stating rule is well settled; dissenting opinion in Ex parte Lange, 18 Wall. 192, 21 L. Ed. 884, judgment may be modified or stricken until call of next succeeding term; dissenting opinion in Aetna Ins. Co. v. Boon, 95 U. S. 143, 24 L. Ed. 403, after expiration of term court below cannot supply a special finding of facts; Edwards v. Elliott, 21 Wall. 552, 22 L. Ed. 490, Gaines v. Rugg, 148 U. S. 242, 37 L. Ed. 437, 13 Sup. Ct. 616, both arguendo. Power of appellate court after remittitur. Note, 21 Am. Dec. 119. Conclusiveness of prior decisions on subsequent appeals. 34 12 Wall. 130-136, 20 L. Ed. 249, NEW ORLEANS ETC. MAIL CO. v. FLANDERS. No one but an appellant can be heard in the appellate court for reversal of a decree. Approved in Field v. Barber Asphalt Paving Co., 194 U. S. 621, 48 L. Ed. 1153, 24 Sup. Ct. 784, cross-appeal to review only non-Federal questions decided against defendant may be taken directly to Supreme Court, where Circuit Court's jurisdiction invoked because of constitutional grounds and of diverse citizenship. Where court discovers that it has no jurisdiction in an action, it may set aside orders improperly made before the discovery. Approved in Mayo v. Dockery, 108 Fed. 900, refusing to dismiss until jurisdiction determined State court proceeding to judgment after order remanding cause set aside; United States v. Green, 8 Mackey (D. C.), 238, discussing jurisdiction of police court over violation of act to prevent sale of lottery tickets; Stickney v. Wilt, 23 Wall. 162, 23 L. Ed. 54, holding want of jurisdiction in appellate court to hear on the merits may not prevent it from correcting an erroneous decree of the Circuit Court; Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 376, 377, 25 L. Ed. 204, 205, holding want of jurisdiction of court below will not defeat jurisdiction on appeal to review that error; In re Haynes, 30 Fed. 770, to point that where court has no jurisdiction its judgments are mere nullities; The John C. Sweeney, 55 Fed. 541, arguendo. Distinguished in Burdett v. Doty, 38 Fed. 491, holding where court had no jurisdiction and writ of replevin had been inadvertently issued and executed the court could not, on dismissing the proceeding, compel the return of the property. 12 Wall. 136–142, 20 L. Ed. 278, THE EUTAW. Not cited. 12 Wall. 142-150, 20 L. Ed. 260, BIGLER v. WALLER. Where a party dies before appeal is allowed and prosecuted, suit shoula be revived in lower court and citation addressed to proper party of record at that time. Approved in Morrin v. Lawler, 91 Fed. 694, holding after appeal perfect substitution should be made in appellate court. Practice and procedure governing transfer of causes to Federal Citation may be made upon the attorney of record of the proper party. Approved in Martin v. Burford, 176 Fed. 555, 100 C. C. A. 159, where service of citation was improperly made by mail, new citation was directed to be issued and properly served. Admission of service by attorney as counsel for defendants of a citation improperly addressed to original party instead of his substituted administrator waives the irregularity. Approved in M'Fadden v. Mountain View Min. etc. Co., 97. Fed. 672, 38 C. C. A. 354, holding citation issued irregularly after Seattle term, returnable in San Francisco, waived by stipulation of counsel. Distinguished in Tripp v. Santa Rosa etc. R. Co., 144 U. S. 129, 36 L. Ed. 372, 12 Sup. Ct. 656, holding service of citation is not waived when not made personally but by mail. Requirement or permission of new or additional appeal or supersedeas bond in appellate court. Note, 10 Ann. Cas. 804. Where bond on appeal is given to deceased party instead of his administrator, leave may be granted in Supreme Court to file new bond in regular form. Distinguished in Vaill v. Town Council of New Shoreham, 18 R. I. 410, 28 Atl. 345, holding appeal bond must follow statute where constituting a jurisdictional prerequisite. Miscellaneous. Cited in First Nat. Bank v. McAndrews, 7 Mont. 438, 17 Pac. 556; Kitchen v. Randolph, 93 U. S. 89, 23 L. Ed. 811; Ex parte Dunn, 6 S. C. 309. 12 Wall. 150-159, 20 L. Ed. 262, BAKER v. MORTON. On admission of a territory, cases pending in territorial courts of a Federal character are transferred to Federal courts. Others are transferred to the new State courts. Cases of concurrent jurisdiction may be transferred to either by the party possessing the option under the existing laws. Approved in Higgins v. Brown, 20 Okl. 413, 1 Okl. Cr. 88, 94 Pac. 725, where indictment for murder was pending in United States court for Northern District of Indian Territory, on admission of State into Union, District Court of State could take jurisdiction as its successor; Glaspell v. Northern Pacific R. R. Co., 144 U. S. 218, 36 L. Ed. 412, 12 Sup. Ct. 596, holding renewal of motion for new trial should have been made in State court after admission of North Dakota; Koenigsberger v. Richmond etc. Min. Co., 158 U. S. 48, 39 L. Ed. 892, 15 Sup. Ct. 754, Dorne v. Richmond Silver Min. Co., 43 Fed. 693, and Dorne v. Richmond Silver Min. Co., 1 S. D. 24, 44 N. W. 1023, holding after admission of South Dakota Federal court has jurisdiction of case pending on appeal between citizens of different States. Questions of State law as to which State court decisions must be followed in actions originating, or removed to, Federal courts. Note, 40 L. R. A. (N. S.) 436. Where a party had pre-emption title to public land, a deed executed by him under threats of murder is void for duress, and will be canceled although a lien on the land is claimed by judgment against the grantee. Approved in Snyder v. Martin, 17 W. Va. 300, 41 Am. Rep. 672, holding purchaser of land by parol in possession will be protected in equity against subsequent judgment creditor of vendor. |