25.9.' I do .not doubt the good faith of. the plaintiff in alleging. herself to·.be a resident of:tha1· · citizen ofNew York, nor of herintention to state, but upon the facts as presented, I feel bound to hold that she be<lame a resident of Newport, the; year 1875, and that she has continued to remain a resident of that city. Suppose the defendant in this case had been a citizen of New York, instead of Rhode Island, and the alleged wrong complained of had happened.. in New York, and the plaintiff had brought suit in the federal court there, would the defendant have been entitled to have the cause dismissed, upon the papers submitted in this case, on the ground that the plaintiff was in fact a Qiti.. zen ofNew York? . The motion to dismiss for want ofjurisdiction is granted.
McCLELLAN et dl.
tI.
PYEATT et aL
CCmmit Court of Appea/.l, Ef.ghth. OirouU. ll'ebrua171. 189'J.)
L WEn. OJ' EBBOR-RBTURN-Du-mKEGULARITIBB. ..... . .. Where on error to the circuit court. of appeals the citation!1J made returnab15 60 days after its date, (as allowed by rule 14, par. 5, 47 Fed. Rep. vii.,) and tbe writ of error on a day named.which islllSS than 60 days therefrom, it. will be pl'8'sumed the fixing of the latter day was an oversight, and' the writ will not be dismissed where the record is filed· thereafter, but. within 110 days, though rule 16, ld. vill., .-equires the record ,to be filed "by or before .. B.uni-REcoRD-CERTIJ'ICATB-MIBTAKB.
of appeals under the proper,caption,the fact that he certifies on the writ l)f error that. he "therewith transmits to the supreme court of the United States" a d.ulycertified' transcript, etc., is an immaterial mistake.
Where the clerk of the lower court transmits the traDSCript to the circuit conn
.
S.
&VB-CJ1'ATION-AMI!lNDING RBTURlf.
Where there is nothing in the record to show that the persOn served witb tbeeltation was a person upon whOm a lawful service could be made, the return may amended to show that he was in fact attorney for defendant in error. bond Which is su1llclent in all other respects waa taken and approved before the writ of error was sued out ilJan immaterial irregularity, as the court willprelJUme that It was reapproved upon the issuance of the citation and the allowanoe of the writ,.
"
BAM_BoND-IRREGULARITY. The mere fact that a BU,YfJ'1'SedeaS
.. BAIfB.
When the security of the supfJ'1'sedeas bond Is lJuflicient, as required by Rev. Bt. 11. S. 11000, It is immaterial that it is aigned by oni,. one of the plaintith iJl error.
In Error to the United States Court in the Indian Territory. Motion to dismiss the writ of error and vacate the euperaecleal. John H. RogerB, for the motion. . George E. Nelsrm and William M. CHav8'11B, opposed. Before OALDWELL, Circuit Judge, and S;HIBA.S and Tlu:nm, Di$triet Judges. THAYER, District Judge. This case comes from the United States court in the Indian Territory. The record shows that final judgment was rendered against the plaintiffs in error on July 8,1891. On the 29th
260
vol. 49.
of July. 1891, a Super8edeas bond was presented to the judge orthe lower court,' which was approved by him on that day, and was filed with the clerk of 'the court on July 31, 1891. On the 15th of August, 1891, a writ.df error was allowed and a citation duly signed. The citation was served oh oneW. T. Hutchins, September 10, 1891. A return was made to the writ of error by lodging.& transcript of the record in this court on October 12,1891. We 'are asked to dismiss the writ of error mainly on the following grounds:' Because the record was not filed in this court, as· required by rule "by or before the return-day;" because no return has been made to this court of the writ of error; because the citation has never been served; and because the bond antedates the writ of error, and is otherwise irreg\:llar and defective. It is sufficient to say that, as the cause was docketed and the record filed in this court within 60 days after the citation was signed, we think the first grouna of the m'otion is untenable. The record shows that the writ of error "..as made returnable on October 7,1891, whereas th,e on the same day admonishes the defendant in error to be and appear in this court 60 days after it bears date; that is, after August. 15, 1891-. Paragraph 5 of rule 14 requires writs of error and citations to be made returnable "not exceeding sixty days from tl;1eday of signing the citation." In view of thilSe facts, we must the return-day stated in the wl;it was due to oversight; very likely to ,an error made in thecomputatiori Of time. The,record hav.ing within 60 days after the writ was issued, we will not, under such circmnstances, hold that there has been any such default as warrantea dismillsal of the w r i t . ' , The second ground of the motion is likewise untenable. The clerk of the 10wEir court certifies on the writo! error that he "herewith transmits to the supreme court of the United States a dilly-certified priptoftherecbtd," etc. But the caption of the return, and the .fact that the' reoord was lodged in this court, shows conclusively that this 'Was what the?ourt intended. We will ignore such obvious mistakeS', do noDena to prejudice either party. ,.·The thirdgr<iJund of the motion, above 'stated, has more merit. There is nothing in the record before us to show that W. T;Hutchins, upoI} whom the citation was served, was a person upon,whom such servictl could la.wfully be' made; and by appearing specially for the purpose of this motion only, the defendant in error has not waived service of the citation. We are assured, however; that service was had upon an attorney whorepwsented the defendant in error on ,the trial in the lower court, and it is clearly within our power to permit the return on the citation to be amended so as'toshow that fact. .'The· objec}tious taken to the bond are not adequQ.teto warrant us in dismissing the writ of error or in vacating the supersedea8. If there are defects in the bond, we have undoubted authority to allow a bond to be given shllll cure such defectEl. ,O'Reilly v.Ed'ri/tJ{Jton, 96. U. S. 724, 72q; :Bo.1ridBon v.Lanit:r, 4 Wall. 453, 454; l)rqlllPl v. ,124 Sup. Ct. ,Rep., 55.9; An8Q'l\ v.il4ilroad ··
PAt.ACl!:-CAR CO. fl. CEN'1'RALTRANSP. CO.
261
But, in view of the nature of the objections made to the bond; we are of the opinion that it is not necessary to require another bond to be given. It is made payable to the proper parties, it contains the proper statutory conditions under section 1000 oithe Revised Statutes of the United States, and no objection is made to it on the ground that the penalty or the sureties are insufficient to secure the debt, damages, and costs, if the plaintiffs in error fail to prosecute their writ to effect. The sole objections to it seem to be that it was taken and approved by the lower court before a writ of error waesued out, and that it is not signed by both of the plaintiffs in error. Section 1007 evidently contemplates that secu; rity shall be taken when the citation issues; and such is the usual and proper practice. It was irregular, therefore, to take, approve, and file a rmpersedeas bond reciting the allowance of a writ of error before any such writ had in fact been allowed. But it was competent for the court to reapprove the bond on the issuance of the citation, and such approval may beimerred or presumed, and we think it ought to be conclusively presumed from the subsequent issuance of the citation and allowance of the writ of error. Brown v. McCcmnell, 124 U. S. 490,8 Sup. Ct. Rep. 01>9; Sag6 v. Railroad Co., 96 U. S. 714. . The objection taken to ,the bond because it was only signed by one of the plaintiffs in error has much less weight. The statute (section 1000) only requires the court "to take good and suflicientsecurity." That such security bas been taken (the bond being signed by two sureties) is not denied. The bond accordingly satisfies the requirements of the statute, though only signed by one of the plaintiffs in error. ; The motion to dismiss the writ of error and vacate the superseckas win accordingly be denied, if within 30 days the return on the citation iii amended so as to show due service, and leave to amend such return w hereby granted. '. ;
PuLLMAN'S
Co.
fl.
CENTRAL.
Co.l
(Oi'1'C'Uit Court, E. D.Pen1t8'1/Zvan1.a. December 1" ll)91.)
L EQUITY-DISCONTINUANCE':":CRoss-BILL. The complainant in an equity suit will not be allowed.to discontinue where an junction has been granted and the defendant seeks, by. a cross-bill consonant with the purpose of the original bill, to take advantage of the testimony in the case and to secure rights which he would otherwise have to secure b1 an independentao,. tion.
a.
SAMX-WJQ:NCnoss-BILJ. :MAY BB FlLXD.
A cross-bill may be filed after answer filed, where the compla.inant is seeking to discontinue, and the object of the cross-bill is to enable the defendant to take aq aggrelisive attitude and settle finally the rights in litigation. .
In. Equity. Motion by complainant for to dis·continueand. by' defendant for leave to .file a cross-bill. Bill by Pullman'sPaiaco:Cat lRepertedby:Mark WDk&CoJJei. Esq., of the Philadelphia b....