BROBST V. BROBST, 69 U. S. 96 (1864)

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U.S. Supreme Court

Brobst v. Brobst, 69 U.S. 2 Wall. 96 96 (1864)

Brobst v. Brobst

69 U.S. (2 Wall.) 96




1. Where the circuit and district judge agree in parts of a case, and dispose of them by decree finally, but are unable to agree as to others, and certify as to them a division of opinion, both parts of the case may be brought to the Supreme Court at once and heard on the same record.

2. A party allowed to enter an appeal bond nunc pro tune in a case where the court supposed it probable that his solicitors had been misled by a peculiar state of the record and mode of bringing up the questions from the court below.

In this case, in the court below, some questions had been disposed of finally by the circuit and district judges, and others were suspended by their inability to agree and a consequent division of opinion. An appeal was taken from the part covered by the final decree, and a certificate of division upon the residue of the case. No appeal bond had been entered.

A motion was now made to dismiss the appeal for want of an appeal bond entered into as required by the act of Congress. It was also objected that no appeal could be taken from the decision of the court below, until the certificate of division of opinion in the same cause between the judges was disposed of in this Court.

MR. JUSTICE NELSON delivered the opinion of the Court.

It appears that an appeal has been taken from that part of the case covered by the final decree, and a certificate of division upon the residue.

There is no objection to this practice. It has been recognized and acted upon in several instances in this Court.

Page 69 U. S. 97

The questions arising on this appeal, and on the certificate of division, come up together, and are heard on the same record.

The omission to file the bond, under the circumstances, may be corrected by filing one in conformity with the act of Congress. The peculiar state of the record, and mode of bringing up the questions from the court below, probably misled the solicitors.

Let a rule be entered, that the appellant have sixty days from notice of it, to file a bond with the clerk of the court, to be approved by the proper officer, upon complying with which, this motion be dismissed; otherwise granted.

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