37. (Dec., 1861.) If it be made to appear, in the case of an appeal pending in this court, that the appellant has purchased and taken an assignment of all the appellee's interest in the decree appealed from, the appeal will be dismissed. Cleveland v. Chamberlain, 1 Black, 419.

38. The rule laid down in Lord v. Veazie (8 How. 254), where both parties colluded to get up a case for the opinion of the court, is applicable to a case where the appellant becomes sole party in interest and dominus litis on both sides. Ib.

39. (Dec., 1861.) If the judges of this court, as well as the court below, are equally divided on the question of jurisdiction, the case will be remitted for such further action as may be required by law and the rules of court. Silliman v. H. R. Bridge Co., 1 Black, 582.

40. Where the record (of an equity case) goes down in this condition, it is the established rule to dismiss the bill, and leave the plaintiff to his remedy by appeal. Ib.

66

41. (Dec., 1863.) Where the charter of a bank provided that the bank should itself continue till Jan. 1, 1859, with a proviso that all banking powers should cease after Jan. 1, 1857, except those incidental and necessary to collect and close up business," a motion, in 1862, to dismiss a writ of error in which the bank was defendant, was refused. Pomeroy v. State Bank, 1 Wall. 23.

42. (Dec., 1863.) In an appeal by the United States from a decree of one of those courts, where the proceeding below was to have a land title confirmed, under this act of March 3, 1851, an assertion by the counsel of the United States, that the controversy is between individuals wholly, and that the United States have no interest in the case, is sufficient to satisfy the court of that fact, so far as respects the United States itself. But it is not sufficient, the record itself not showing the fact, to satisfy the court as respects the opposing party. Hence, although, if this court have no jurisdiction, because the controversy is between private individuals wholly,

the court below had none either; yet where the fact of such individual interest in the suit rests wholly on the admission of the United States here, and the opposing party is not represented here by counsel, this court will not reverse the decree below, but will only dismiss the case. United States v. Morillo, 1 Wall. 706.

43. (Dec., 1865.) A petition for an appeal to this court from the Circuit Court, filed in the office of the clerk of the Circuit Court merely, unaccompanied by an allowance of the appeal by that court, does not bring the case up. An appeal thus made, dismissed. Barrel v. Transportation Co., 3 Wall.

424.

44. (Dec., 1865.) A motion to dismiss an appeal, in a decree of foreclosure, in chancery, refused, though the complainant below, appellant here, had, after his appeal made, issued execution and got the amount for which the decree he appealed from was given. Merriam v. Haas, 3 Wall. 687.

45. (Dec., 1865.) Where a writ of error is taken to this court, by a plaintiff below, who, previously to taking the writ, issues execution below, and gets a partial, but not a complete satisfaction on his judgment, the writ will not, in consequence of such execution merely, be dismissed. United States v. Dashiel, 3 Wall. 688.

46. (Dec., 1866.) When a want of jurisdiction is patent, or can be readily ascertained by an examination of the record, in advance of an examination of the questions on the argument of the merits, this court will entertain and act upon a motion to dismiss for want of jurisdiction. Semple v. Hagar, 4 Wall. 431.

47. (Dec., 1866.) Appeal dismissed for want of jurisdiction, where the decree was rendered 13th June, 1861, but no appeal was prayed for or allowed until June term, 1865, when, on motion of the defendants below, an appeal was allowed nunc pro tunc, as of 13th June, 1861, there having been no citation to the appellees, and the record not having

been brought up at the next term.

5 Wall. 823.

Garrison v. Cass County,

48. (Dec., 1867.) A writ of error made returnable to a day different from the return-day fixed by statute as the day on which the term commences, dismissed. Agricultural Co. v. Pierce County, 6 Wall. 246.

49. (Dec., 1868.) If it is apparent from the record that this court has not acquired jurisdiction of a case for want of proper appeal or writ of error, it will be dismissed, although neither party ask it. Edmonson v. Bloomshire, 7 Wall. 206. 50. (Dec., 1×69.) An appeal upon a bill for the infringement of a patent, dismissed, it appearing that, after the appeal, the appellants had purchased a certain patent to the defendants, under which the defendants sought to protect themselves; and that the defendants, as compensation, had taken stock in the company which had unsuccessfully sought to enjoin them, and was now appellant in the case. Wood Paper Co. v. Heft, 8 Wall. 333.

51. The fact that damages for 'the infringement, alleged in the bill, had not been compromised, held not to affect the propriety of the dismissal. Ib.

52. (Dec., 1869.) An appellant has a right to have his appeal dismissed, notwithstanding the opposition of the other side. Latham's and Deming's Appeals, 9 Wall. 145.

53. (Dec., 1869.) The mere making and pendency of a motion in the Court of Claims, for a new trial, under the act of June 25, 1868, s. 2, is not a sufficient ground for dismissal of an appeal taken to this court prior to the making of such motion. But the granting of such motion, and the order for a new trial, vacating, as it does, the judgment appealed from, is. United States v. Ayres, 9 Wall. 608.

54. (Dec., 1870.) A writ of error dismissed as defective in respect to parties where the suit was against four persons by name, and the writ recited that it was against two which it named, “and others." Miller v. McKenzie, 10 Wall. 582.

55. (Dec., 1870.) An appeal dismissed because taken in the name of William A. Freeborn & Co., the court holding that no difference existed between writs of error and appeals, as to the manner in which the names of the parties should be set forth. The Protector, 11 Wall. 82.

56. (Dec., 1870.) When a case is within the jurisdiction. of the court, and there has been no defect in removing it from the subordinate court to this, the court will not dismiss the case on motion made out of the regular call of the docket. The Eutaw, 12 Wall. 136.

57. (Dec., 1870.) A proceeding which is, in its essential nature, a foreclosure of a mortgage as a mortgage is foreclosed in a court of chancery, is a suit in equity, by whatever name it may be called, and when brought here by writ of error, the writ must be dismissed. Walker v. Dreville, 12 Wall. 441.

58. (Dec., 1871.) Three appeals in equity against collectors and the Commissioner of Internal Revenue dismissed, the pleadings not showing the citizenship required by the Judiciary Act; and the bills having been all filed subsequently to the 13th July, 1866, when the act of 1833, which gave jurisdiction to the courts of the United States, of suits under the internal revenue acts, against collectors and others, without regard to citizenship, was repealed. Mason v. Rollins, 13 Wall. 602.

59. (Oct., 1874.) A bill was filed by two parties, one of whom showed good cause for equitable relief, but the other of whom did not show what interest he had in the subject matter of litigation, or that he had any. The bill was demurred to on several grounds, one being the want of such showing (which, by settled equity rule, is a good ground of demurrer), and another ground being that the bill showed that the claim was barred by the Statute of Limitations, was stale, &c.; an allegation about the bill not true in fact, it showing the reverse, and this ground of demurrer therefore

failing. The court below "dismissed" the bill generally; and in this state, the record was of course capable of being pleaded in bar to a new suit, on the merits. This court being of opinion that the only defect in the bill was that it did not show interest in both the parties, while it did show cause for equitable relief in one, refused to affirm the decree below, as it would have done had the dismissal been without prejudice, or because a party who showed no interest was a complainant. On the contrary, to prevent what might be a great injustice, in case of another suit on the merits, by the record being used in the way above mentioned, the court reversed the decree, and remanded the case, with directions to allow the complainant to amend his bill within a reasonable time, or, failing to do this, to dismiss it without prejudice. House v. Mullen, 22 Wall. 42.

69. (Oct., 1874.) Though a failure of the party making a motion to dismiss, to send a copy of his brief to the counsel of the other side within the time required by the amendment made at December term, 1871, to Rule 6, would entitle such counsel of the other side to ask to postpone the hearing, in order to give time for further preparation, yet if he have himself, before the hearing, filed a full argument upon the merits of the motion, the failure of his opposing counsel to have complied with the amendment to the rule would hardly warrant an objection that the notice of the motion was insufficient. Thomas & Co. v. Wooldridge, 23 Wall. 283.

61. The court will not, generally speaking, refuse to hear a motion to dismiss before the term to which, in regular order, the record ought to be returned, if the record be printed, and the rules of court about motions of that sort have been complied with by the party making the motion. 1b.

62. A motion to dismiss an appeal in equity may properly be made by one of several appellees, he being the only one who has any interest in the suit, and the only one who filed an answer below.

Ib.