Argument against the motion.

by a copy of the brief or argument to be submitted. The record had been printed.

An amendment to Rule 6, adopted at the December Term, 1871, orders that

"All motions to dismiss appeals and writs of error (except motions to docket and dismiss under the ninth rule), must be. submitted in the first instance in printed briefs or arguments. If the court desires further argument on the subject, it will be ordered in connection with the hearing on the merits.

"The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for the plaintiff in error or appellant, of record, at least three weeks before the time for submitting the motion," &c.

However, in the present case, the appellants, before the day fixed for the hearing of the motion, filed a brief of six pages, going into the merits of the motion.

The record had been printed.

Mr. Joseph Casey, in support of the motion:

The decree below is not the subject of an appeal.

This court has decided, in Moses v. The Mayor, and previously, that an appeal does not lie from au interlocutory decree dissolving an injunction,* or refusing one.†

In Thompson v. Dean, it is held that no decree is final which does not dispose of the whole case.

Mr. A. P. Pittman, contra:

This motion is made on the sole ground that there was no such final judgment in the court below as to sanction an appeal here. But

1. Will this court entertain the motion at all before the

* Young v. Grundy, 6 Cranch, 51; Moses v. The Mayor, 15 Wallace, 387. Gibbons v. Ogden, 6 Wheaton, 448; United States v. Clarke, 9 Peters,

168.

‡ 7 Wallace, 342; and see Railroad v. Bradleys, Ib. 577; Stovall v. Bank, 10 Id. 583; Wells v. McGregor, 13 Id. 188; Insurance Co. v. Barton, 15. 603; St. Clair Co. v. Lovingston, 18 Id. 628.

Argument against the jurisdiction.

return day of the record? Certainly its general practice is not to entertain motions to dismiss before such time.

2. If it will thus entertain the motion, is service of a copy of the motion, unaccompanied by any brief or argument, upon the attorney of record in the Circuit Court, sufficient notice under the sixth rule, and the amendments to it made at December Term, 1871?

3. A reference to the notice served will show that all the parties defendant to the case in the lower court are not parties to this proceeding to dismiss. The marshal and attorney have received no notice, though they were parties defendant to the bill. The notice of the present motion was given to Wooldridge alone. Is it not necessary that the former two parties should join in this motion, equally so as if they prayed an appeal or writ of error?*

4. Finally, and as to the main point. Was not the decree of the court below, dissolving the injunction, such a judgment as could be appealed from to this court?

Where injunction is the sole equity of the bill and the only relief sought, an order of dissolution is such a final order as can be appealed from. This is the view taken by the Supreme Court of Illinois.†

And this court have indicated a similar view.

If Moses v. The Mayor,§ have a contrary aspect, that case is distinguishable from this one. That case was an appeal from the judgment of a State Supreme Court revising and remanding the cause to the inferior State court. This is an appeal from a decree of the Circuit Court finally disposing of the merits of controversy. The motion to dissolve was upon an answer which raised only a question of law. Nothing thus remained to be done except formally to dismiss the case for want of equity.

* Williams v. Bank of the United States, 11 Wheaton, 414.

Titus v. Mabee, 25 Illinois, 257.

Thompson v. Dean, 7 Wallace, 342; Railroad Co. v. Bradley, Ib. 575; Stoval v. Bank, 10 Id. 583.

15 Wallace, 387.

Opinion of the court.

The CHIEF JUSTICE delivered the opinion of the court. It is first objected that this motion cannot be entertained now because the appellants had until the next term to file the record. In Ex parte Russell, we decided that "unless some unforeseen inconvenience should arise from the practice, we would not refuse to hear a motion to dismiss before the term in which, in regular order, the record ought to be' returned," if the record was actually brought here and printed. We think now, as we did then, that such a practice will "be likely to prevent great delays and expense and further the ends of justice."

It is next objected that the notice of the motion is insufficient, because it was not accompanied by a copy of the brief or argument to be used in its support, as required by the amendment to Rule 6, adopted at the December Term, 1871. This might have been a good cause for postponing the hearing to give time for further preparation, if application therefor had been made. Instead of that a full argument has been filed upon the merits of the motion. No more could be done if the hearing should be now postponed. Under these circumstances we are inclined to treat the filing of the argument as a waiver of the notice required by the rule.

It is next objected that all the parties defendant in the lower court are not parties to this motion to dismiss. The motion is made by the appellees and is signed by the attorney of the only defendant in the court below who had any real interest in the litigation, and the only one who filed an

answer.

This brings us to the merits of the motion. We have many times decided that an appeal will not lie from a decree dissolving an injunction without dismissing the bill.†

In this case the bill was not dismissed. It may have been the intention of the court to dispose of the whole case by the

18 Wallace, 671.

Young v. Grundy, 6 Cranch, 51; McCollum v. Eager, 2 Howard, 61; Hiriart v. Ballon, 9 Peters, 167; Moses v. The Mayor, 15 Wallace, 390.

Statement of the case.

entry as made, but that intention is certainly not expressed. A motion was made to dissolve the injunction upon the bill and answer filed. It does not appear that the case was heard except upon this motion, and there is nothing in the record to show that it will not be still within the power of the Circuit Court upon the dismissal of the appeal to grant the complainants all the relief they ask. The case is still open on its merits. It is only the interlocutory order that has been disposed of.

APPEAL DISMISSED.

SANDUSKY V. NATIONAL BANK.

A petition addressed to the District Court "in bankruptcy sitting," by a person who has been decreed an involuntary bankrupt, "for a review of the record of the said proceedings in bankruptcy, and that the decree declaring the petitioner a bankrupt be set aside and vacated, and the petition of the petitioning creditor be dismissed and the petitioner's estate be restored to him; and for such other and further relief in the premises as may be equitable and just "-the orders and notices and every proceeding in the matter being entitled as in the original proceeding "in bankruptcy "-is but a petition filed in the original proceedings in bankruptcy; and is not a bill in equity to impeach the adjudication for fraud. It cannot be separated from the original proceedings and taken into the Circuit Court by appeal as a case in equity under the eighth section of the Bankrupt Act. If any action by the Circuit Court is wanted by the person decreed a bankrupt, he must obtain it under the second section of the Bankrupt Act, which gives a general supervisory jurisdiction to that court over the proceedings of the District Court, except where special provision is otherwise made. No special provision is made in such a case for review by the Circuit Court. From any decision by the Circuit Court, acting in its general supervisory jurisdiction conferred by the second section, no appeal or writ of error lies to this court.

ON motion by Mr. W. T. Otto, to dismiss, for want of jurisdiction, an appeal from the Circuit Court for the Southern District of Illinois; the case being thus:

By the Bankrupt Act it is thus in effect enacted:

"SECTION 1. That the several District Courts be . . . courts

Statement of the case.

of bankruptcy, and shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy. . . . And the jurisdiction shall extend to all cases and controversies arising between the bankrupt and any creditor who shall claim any debt or demand under the bankruptcy," &c.

"SECTION 2. That the several Circuit Courts . . . within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and except where special provision is otherwise made, may, upon bill, petition, or other proper process, of any party aggrieved, hear and determine the case [as] a court of equity.

"SECTION 8. That appeals may be taken from the District to the Circuit Courts in all cases in equity," &c.

In this state of statutory law, the First National Bank of Indianapolis, on the 25th of August, 1871, filed a petition in the District Court of the United States for the Southern District of Illinois, to have Harvey Sandusky adjudged a bankrupt. Sandusky appeared on the 5th September and, denying the allegations against him in the petition, demanded a trial by jury. This demand was afterwards withdrawn by his attorney, and, on the 30th January, 1872, he was in due form adjudged by the court a bankrupt. Afterwards an assignee, one J. G. English, was chosen and qualified, who proceeded with the settlement of the estate.

On the 9th December, 1873, Sandusky served upon the bank a notice, entitling it, "In the matter of the petition of the First National Bank of Indianapolis v. Harvey Sandusky, in bankruptcy," and giving to the bank notice that "on the 10th of December, 1873, at 10 o'clock A.M., before the Honorable S. H. Treat, judge of the said court, at chambers, he, said Harvey Sandusky, would move the court for leave to file his petition in the above-entitled cause, for a review of the proceedings in the said cause, and to vacate the decree of bankruptcy therein, and for other relief, which petition" the notice stated that "the said Sandusky had on that day placed in the hands and in the office of the clerk of said court for the examination of the bank and of its attorneys."