PEACE RIVER PHOSPHATE CO. v. EDWARDS, 70 F. 728

PARDEE, Circuit Judge. On the 16th day of March, 1835, the district court for the Southern district of Florida, on a libel in admiralty, rendered a decree in personam in favor of Benjamin J. Edwards, and against the Peace River Phosphate Company, condemning the said company to pay to the said Edwards the sum of §3GO.

Afterwards, on the 15th day of April, 1895, the said Peace River Phosphate Company filed in said court the following document: “In tbe District Court of tbe United States, Southern District of Florida. “Peace River Phosphate Company, a Corporation Organized under the Daws of the State of New York, Appellant, v. B. J. Edwards, Appellee. “To Gordon Graham and Isaac H.

Trabue, Proctors for the Appellee: You will please take notice that we have taken an appeal from the final decree herein rendered against the said appellant on the IGth day of March, 1805, to the circuit court of appeals to be holden in New Orleans, Da., on the third Monday in November, A. D. 1895. “Standford & Treadwell, Proctors for Appellant.” —And on the same day filed in the office of the clerk an assignment of errors.

On the 25th day of April the said company filed in the office of the snM clerk a bond with sureties, purporting to be for an appeal and supersedeas, which bond is in the penal sum of $1,500, and in the ordinary form for an appeal, except the condition of the same, to wit: ‘‘'Vow, therefore, the condition of this obligation is such I hat if the above-named principal, the Peace River Phosphate Company, shall prosecute its appeal to effect, and answer1 all damages and costs in the event said decree is affirmed, then this application is to he null and void, otherwise to remain in full force and effect.” YVhsit purports to be a transcript of the record was filed in this court July 20, 1895.

On November 11,1895, the proctors of Benjamin J. Edwards entered a special appearance in this court to move to dismiss ¡he said preiended appeal, assigning the following reasons: “First Because no citation was sued out of the said district court, or out of this circuit court of appeals, by said appellant, the Peace River Phosphate Company. Second. Because no citation of said appeal has been served on appellee'or his proctors, or oil her of them. Third.

Because said appellant has given no sufficient supersedeas or appeal bond, in this: that the said bond given by the appellant is conditioned io prosecute this appeal to effect, and ajiswer'all cost and damage in the event said decree is affirmed, whereas the condition should be to prosecute (he appeal io effect, and answer all damages and cost If it fails to make its plea, good.” The above-mentioned grounds are each and all well taken.

The transcript filed in this court (and above we have given all therein in relation to an appeal and supersedeas) does not show that one necessary stop towards the taking and perfecting of an appeal has been taken, save only the tiling in the court below of an assignment of errors. No appeal having been taken and perfected as required by law and the rules of this court, the cause is ordered stricken from the docket.