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CARR V. HOXIE, 38 U. S. 460 (1839)

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U.S. Supreme Court

Carr v. Hoxie, 38 U.S. 13 Pet. 460 460 (1839)

Carr v. Hoxie

38 U.S. (13 Pet.) 460

Syllabus

An original decree was made in the Circuit Court of Rhode Island at June term, 1834, and an appeal was taken to January term, 1835, of the Supreme Court. This appeal was dismissed at January term, 1837, on the motion of the counsel for the appellees, without an examination or decision on the merits of the cause. At the November term of the circuit court, the defendants prayed and were allowed a second appeal to the Supreme Court, which appeal had not been yet entered on the docket of the Supreme Court. The circuit court afterwards proceeded to order execution of the decree of 1834, and the defendant appealed to the Supreme Court from this decree. Held, that this appeal from the decree of the circuit court ordering the execution of the original decree is not a supersedeas to further proceedings in the circuit court to execute the original decree, and that the circuit court is at liberty to use its discretion to proceed to execute the original decree. Held also that the decree of execution is not a final decree in the contemplation of the act of Congress, from which an appeal lies.

In the Circuit Court for the District of Rhode Island, at June term, 1834, in the case of Joseph Hoxie against Nathan Carr and others, a decree was rendered for the complainant on a bill of equity filed in that court. From this decree the defendants appealed to the Supreme Court of the United States to January term, 1835. At January term, 1837, on motion of Mr. Green, of counsel for the appellees, the appeal was dismissed and, a certificate thereof having been sent to the circuit court, that court proceeded, at November term, 1837, to order and decree the execution and decree made at the June term, 1836. The court decreed a sale of the property according to its decree of 1836, and that the proceeds thereof should be brought into the registry, to be paid and applied as ordered in and by the original decree.

From this decree the defendants prayed for an appeal to the Supreme Court, which was allowed. The record brought up on this appeal contained no part of the proceedings on the original bill, in which there was a decree in 1834. It presented nothing but the proceedings of the Circuit Court of Rhode Island, in November, 1837, and the decree of the Supreme Court of the United States dismissing the appeal, and the decree of the circuit court in the original suit, at June term, 1834, with the decree of the court on 5 November, 1837, ordering the execution of the same.

The proceedings in the original bill were not again brought up to the Supreme Court by a second appeal in that case. chanroblesvirtualawlibrary

Page 38 U. S. 462





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