In re FIECHTL et al. PETER HAND BREWERY CO. v. SECURITY TITLE & TRUST CO., 107 F. 618

PER CURIAM. This appeal is from an order entered on March 2, 1901, which concludes with these words: “Whereupon, the Peter Hand Brewing Company, by its solicitors,, prays an appeal.” On March 6th an order was entered fixing the amount of the appeal bond. On March 11th an order was entered showing the filing at 10 o'clock a. m. of the appeal bond, approved by the judge of the court, and on the same day another entry was made, showing the filing at 12:15 o'clock p. m. of an assignment of errors.

On April 6th the district court, on motion of the appellant, “ordered that the time in which to file the record on appeal in the cause be, and hereby is, extended to Tuesday, April 9, 1901, at 11 o’clock a. m.” The record was filed here on April 9, 1901. The Security Title & Trust Company, appearing specially for the purpose of making the motion, has moved to dismiss the appeal for the reasons: “First. That appellant has failed to perfect Its appeal, In that It has not filed any petition with its assignments of error, as required by rule 11 of this court. Second. That no appeal herein has been allowed. Third.

That no appeal was prayed or allowed after filing assignments of error. Fourth. That no proper assignments of error have been filed, as required by rule 11. Fifth. That said assignments of error are vague, indefinite, and altogether uncertain. Sixth. That no citation has been issued or served herein as required by the rules of this court.” There was a substantial, though not exact and technical, compliance with the rules regulating the taking of appeals. The allowance of an appeal need not be by a formal order; it may be shown by the approval of the appeal bond.

A citation is not necessary when an appeal is taken during the term of court at which the order appealed from is entered. Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989; Sage v. Railroad Co., 96 U. S. 712, 21 L. Ed. 641; Draper v. Davis. 102 U. S. 370, 26 L. Ed. 121; Trust Co. v. Stockton, 18 C. C. A. 408, 72 Fed. 1. The motion is overruled.