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of the decree as entered is the following: “And from this decree the complainant. Sunuel A. Peugh, prays an appeal to the supreme court of the United Staies, which is allowed.” No bond of any kind was executed under this allowance until the tenth of May, 1883, when Mr. Justice MILLER granted a supersedeas and took the necessary security for that purpose. He at the same time signed a citation. On the same day another citation was signed by the chief justice of the supreme court of the district. Davis, the appellee, now moves to vacate the supersedeas, because no appeal was perfected within 60 days after the rendition of the decree appealed from, and also to dismiss the appeal.
In Kitchen v. Randolph, 93 U.S. 92, it was held that “the service of a writ of error or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is anoindispensable prerequisite to a supersedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay on the judgment or decree, if this has not been done.” In referring to this case at the same term in Sage v. Central R. Co. Id. 416, it was spoken of as holding that, unless the writ of error was sued out and served, or the appeal taken within the 60 days, no supersedeas could be allowed. It thus appears that the words “perfected” and “taken” were used interchangeably, and were evidently intended to mean the same thing as “allowed.” The rule established by these cases, when accurately stated, is therefore no more than to give a justice or judge of the appellate court authority to grant a supersedeas after the expiration of the 60 days, and a writ of error must have been issued and served, or an appeal allowed within that time.
In Edmonson v. Bloomshire, 7 Wall. 307, it was decided that a prayer for an appeal made in open court, and an order allowing it, constituted a valid appeal. Under such circumstances the allowance becomes the judicial act of the court in session, and the bond is not essential to the taking of the appeal, though it may be to its prosecution. As was said in the case last cited: “It could have been given here, and cases have been brought here where no bund was approved by the court below, and the court has permitted the appellant to give bond in this court." Anson v. Blue Ridge R. R. 23 How. 1; Brobst v. Brobst, 2 Wall. 96; Seymour v. Freer, 5 Wall. 822, are cases of that character. And in The Dos Hermanos, 10 Wheat. 306, where an appeal was prayed within the five years' limitation, and was actually allowed by the court within that period, although the bond was not given until afterwards, Chief Justice MARSHALL said: “It is true the security required by law was not given until after the lapse of the five years; and under such circumstances the court might have disallowed the appeal and refused the security. But as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal.
We decided in Railroad Co. v. Blair, 100 U. S. 662, that if an appeal was allowed by the court during the term at which the decree was entered, and the bond was not executed until after the term, a citation was necessary, but that related only to procedure under the appeal and is not in conflict with the former decisions as to the effect of an allowance of an appeal by the judicial act of the court in session.
In view of these rulings we hold that if a court in session, and acting judicially, allows an appeal, which is entered of record without taking a bond, within 60 days after rendering a decree, a justice or judge of the appellate court may, in his discretion, grant a supersedeas after the expiration of that time under the provisions of section 1007 of the Revised Statutes. Nothing here said is to be construed as affecting appeals other than such as are ai lowed by the court acting judicially and in term time.
The motion is denied.
(110 U. S. 317)
CORKER 0. JONES, Ex'r, etc.
(February 4, 1884.)
1. GUARDIAN AND WARD-JURISDICTION OF EQUITY-GUARDIAN AD LITEM.
Although the court of ordinary in Georgia has generally exclusive jurisdic:10! of the property of infants, a purchase of land by a guardian for his ward on credii
is a proper subject for the cognizance of a court of equity. 2. SANE-DECREE AGAINST INFANT.
A decree against an infant can be impeached for the lack of a guardian ad litemi
only by bill of review or by appeal. 3. SAME-Right OP GUARDIAN TO ACQUIRE ADVERSE INTEREST.
In judicial proceedings, where a guardian and ward stand at arm's length, the guardian is not precluded from acquiring by decree of court an interest adverse to his ward, provided the proceedings are untainted by fraud.
Appeal from the Circuit Court of the United States for the Southern Distrit of Georgia.
Henry B. Tompkins, for appellant.
MATTHEWS, J. * Malcolm D. Jones, of whom Francis A. Jones, the appel.* lce, is executor, in his life-time was executor of the last will of Drury Corker, deceased, and testamentary guardian of the person and estate of the testator's son, Ernest D. Corker, the appellant, one of the devisees, then a minor, who arrived at age since filing the present bill. While acting as such, on July 24, 1863, Malcolm D. Jones, is guardian, purchased a tract of land known as the Gilstrop and Watson place, part of the estate of Drury Corker, from the trustees of Mrs. S. Ilart, a daughter of the testator, to whom he had devised it, with power to sell. The consideration paid was $15,600 in confederate money, which was advanced by Malcolm D. Jones from his own funds. The conveyance was to him as guardian of the appellant, the latter being charged in account by the guardian with the amount of the advance. In 1867, while the appellant was still an infant about 11 years of age, and living with his mother, a bill in equity was filed in the superior court of Burke county, where they resided, a court of general jurisdiction at law and in equity, in the name of the appellant, suing by his mother and next friend, to which Malcolm D. Jones was made defendant, praying for a rescission of the transaction as between the guardian and ward, so that the former should take the land, and the latter be relieved from the payment of the consideration. The pleadings in that case are not exhibited in the present record, as it is stated, because they have been lost or destroyed; but the matter was submitted to a jury, who found that “it is to the interest of Ernest D. Corker, the minor, under his circumstances, that said purchase be rescinded, and deed be cancelled and set aside as to said Ernest D., leaving it to stand as against the makers and in favor of said Malcolm D. individually; and that, if necessary, said Ernest D. make, and deliver a proper conveyance of said land to said Malcolm D.” And upon this verdict, on January 1, 1868, it was by the court ordered and de-s creed “that said deed be, and is hereby, set aside and cancelled as to said Ernest*D. only, and that it stand good against the makers thereof, and for* the use and benefit of said Malcolm D. individually, and said Ernest D. make any, all necessary, and proper conveyances of the land referred to to said Malcolm D.; that said Malcolm D. also pay one-half of the costs of this proceeding, and said Ernest D. the other half thereof." Thereafter Malcom 1). Jones went into possession of the land, claiming title thereto in his own right, and since his death his executor, Francis A. Jones, one of the appellves, has sold the same in parcels under judicial proceedings in the superior court of Burke county, as the property of Malcolm D. Jones, deceased, to the several
other appellees. These purchasers claim to be protected as such against any equities of the appellant, but the latter insists that they had not acquired the legal title, nor fully paid the purchase money at the time he filed his bill, and consequently are not innocent purchasers.
Without reference to that question, however, the appellant claims that he has the legal estate in the land in controversy by virtue of the deed of his guardian from the trustees of his sister, and that it was not divested by the decree of the superior court of Burke county of January 1, 1868, for the reason that that court had no jurisdiction in the case, and the proceedings and decree therein were coram non judice and void. This is urged on the ground that the court of ordinary in Georgia has jurisdiction, exclusive of the superior court, to deal with the property of minors, and various provisions of the Code of that state are cited in support of that proposition. Among others, section 1837 provides that “the guardian cannot borrow money and bind his ward therefor, nor can he, by any contract other than those specially allowed by law, bind his ward's property or create any lien thereon." It would be difficuit under this section, or any others to be found relating to the subject, to discover any authority for the purchase by Jones, the guardian, of the real estate in controversy for his ward, on credit, advancing the money as a loan for that purpose; and the question whether it was a transaction-that should stand or be canceled, as between guardian and ward, was not one arising in the ordinary course of administration for settlement as a mere matter of account in the court of ordinary, but, as we think, was one more appropriately dealt with in the more formal procedure of a court of general jurisdiction with equity powers. The question is not one relating to the sale or disposition of any part of the ward's estate which had come under the control of the guardian, but was whether, under the circumstances, the purchase made by the guardian should be treated as made for the benefit of his ward, or whether its burdens and risk should be borne by him individually. It was peculiarly a case for cognizance in equity, and the superior court of Burke county, we think, had jurisdiction to make the decree directing the title to remain in Malcolm D. Jones for his own use.
It is further urged, however, that the decree is voidable, because it was taken against an infant, without the protection of a guardian ad litem. If the infant had been defendant the objection could only be taken on appeal, or by bill of review, and not collaterally; but the infant was plaintiff and sued by his next friend, which was proper, and there is no more ground for saying that the decree was against the infant than in his favor. He was relieved from the burden of the purchase, which was the object of the suit.
But it is also claimed that the relation of the parties was such that the guardian could not acquire an interest adverse to his ward, and that the attempt to do so will convert him into a trustee by construction. But the transaction was judicial, the parties standing at arm's length as avowed litigants: the plaintiff being represented by his mother, appearing on the record with him as his next friend, and the court deciding between them. That judgment must be conclusive, unless it can be impeached for unfairness and fraud. This charge is in fact made, it being alleged, that the suit was collusive. The only proof of this is, that the mother of the infant agreed with the guardian that it was best to submit the question of the purchase to the decision of the court. Their co-operation in this is not sufficient, in our opinion, to raise the*suspicion of fraud. Outside of this circumstance there is no proof.
It is finally alleged that, upon a settlement of accounts between the guardian and ward, a larger amount should have been found due to the latter than was awarded by the court below. But the decree on that point is in conformity with the evidence..
We find no error in the record and the decree is affirmed.
(110 U. S. 321)
(February 4, 1884.)
TAXATION-CHARTER OF EAST St. Louis—PAYMENT OF BONDED INDEBTEDNESS.
The city of East St. Louis is empowered by its charter to levy for all purposes a tax of 1 per cent., and no more, and out of this to apply three-tenths of 1 per cent., and no more, to the payment of its bonds. Held, that a decree commanding the city to levy the full tax of 1 per cent., and to appropriate a certain sum out of three-tenths of that amount to the payment of its bonded indebtedness was proper and justifiable; but that a decree ordering a certain amount out of the remaining seven-tenths to be applied for a like purpose was unwarranted by the charter and could not be upheld. even though the whole levy.was not required for the current expenses of the city. If a surplus actually existed it might be disposed of by the court, but its existence cannot be anticipated and enforced.
In Error to the Circuit Court of the United States for the Southern District of Illinois.
J. W. Freels and B. H. Canby, for plaintiffs in error.
MATTHEWS, J. The relator having recovered judgments in the circuit court of the United States for the Southern district of Illinois upon bonds issued by the city of East St. Louis, a municipal corporation of that state, was awarded in this proceeding a peremptory mandamus. The directions of the judgment are as follows:
“That said defendant, the city of East St. Louis, do, through its proper corporate authorities, levy and collect full one per cent. per annum taxes upon the assessed and equalized valuation of all the real and personal taxable property of said city for the year A. D. 1883, and subsequent years, until the full payment and discharge of all balance due upon said judgments in said petition mentioned, with lawful interest thereon, and the costs of said suits wherein said judgments were obtained, as also the costs of this suit.
"It is hereby further ordered and adjudged that said city do, through its proper corporate authorities, annually, commencing with the year A. D. 1883, appropriate and set apart three thousand dollars out of three-tenths of said one per cent. levy, and the sum of ten thousand dollars out of the remaining seven-tenths of said one per cent. levy, as a special fund for the payment of said judgments, interests, and costs, until the same are fully paid and discharged.
"It is further ordered and adjudged that said city annually, through its proper corporate authorities, pay over said sums, so soon as collected, to petitioner's attorney of record, to be applied towards the payment of said judgments, interest, and costs.
"It is further ordered and adjudged that said city do annually, for the year A. D. 1883, and subsequent years, until said judgments, interest, and costs are fully paid, exercise, through its proper corporate authorities, to the full extent of its charter provisions, all its powers and resources of taxation and revenue derivable from all sources whatever; and that it do, through its corporate authorities, appropriate, use, and expend its said revenues in the most rigid and economical administration of its municipal affairs, to the end that said judgments, interest, and costs may be paid as speedily as possible. And it is ordered and adjudged that whatever funds remain at the end of each fiscal year, if any, after such economical administration of its affairs, as above ordered, that it apply the same in further liquidation of said judgments.”
The cause having been duly submitted to the court without the interven. tion of a jury, the court made the following special findings: "(1) That said city of East St. Louis is organized and existing under a special act of the leg islature of Illinois, approved March 26, 1869, entitled •An act to reduce the charter of East St. Louis, and the several acts amendatory thereto, into one act, and to revise the same,' and that the bonds upon which the judgments of relator were rendered were issued under and in pursuance of said act; (2) that said city, by its said charter, is limited in its power to tax for all purposes to an annual tax not exceeding one per centum per annum' upon the assessed value of all the taxable property in said city; (3) that said charter re. quires that a registry shall be kept of all bonds issued, and that the city council shall levy and collect a tax not exceeding three mills on the dollar upon each annual assessment made for general purposes, for the purpose of paying the interest on such bonds, and to provide a sinking fund to liquidate the same; (4) that said city has no power of taxation other than said annual tax of one per cent. above mentioned, and no other source of revenue except that derived from licenses, which amount annually to the sum of $35,000, of which sum $16,000 is derived from the licensing of dram-shops, and one-lialf of this sum is required by said charter to be paid over to the treasurer of school township No. 2 north, range 10 west, in St. Clair county, Illinois, for the use and benefit of the public school fund; (5) that the assessed valuation of all the taxable property in said city is $3,500,000; (6) that the bonded debt of said city is $300,000; (7) that petitioner's judgments aggregate the sum of $55,000; (8) that said city has no money or surplus funds in its treasury with which to pay petitioner's judgments, or any part thereof, and no meaus uf paying them except that derived from taxation and licenses; (9) that said city has heretofore expended the sum of, to-wit, $75,000 per annum to de fray the current expenses of the city government and the different depart. ments thereof, but the court finds that such sum is not necessary for the present and future years; (10) and, finally, the court finds from the evidence that the $10,000 ordered to be appropriated from the seven-tenths of one per cent. of the tax levy of 1883 and subsequent years, and applied to the payment of said judgments, is not required to defray the necessary current expenses of said city, and further find that the three thousand dollars ordered to be appropriated from the three-tenths of one per cent. and applied to the payment of said judgments is petitioner's pro rata share of said three-tenths of said one per cent."
The plaintiff in error has no reason to complain of so much of the command of this judgment as requires it to levy and collect an annual tax to the full amount of one per cent. upon the assessed value of the taxable property subject thereto, and to apply $3,000 out of three-tenths thereof to the payment of the interest and principal of the relator's judgments. That levy is authorized by its charter, and that proportion of it is expressly pledged to the payment of the interest on, and redemption of its bonded debt, and the particular sum mentioned and appropriated to the relator's judgments is only the proper proportion to which they are entitled. The further award of the annual sum of $10,000 to the relator, payable out of the remaining seventenths of the one per cent. levy cannot be justified. That fund, by the terms of the charter of the city, under which the bonds were issued, is authorized for the purpose of paying the necessary current expenses of administration, not including payments on account of the bonds of the municipal corporation. And admitting that any surplus of such fund, in any year, remaining after payment of such expenses, ought to be applied to payment of the interest and principal of the bonds, that could only be required when such surplus should have been ascertained to exist. In the present judgment the court has undertaken to forsee it, and by mandamus to compel the city, by limiting its expenditures for its general purposes, to create the surplus, which it appropriates. But the question, what expenditures are proper and necessary for the municipal administration, is not judicial; it is confided by law to the discretion of the municipal authorities. No court has the right to control that