Jacobs v. Bealmear

Brent, J., delivered the opinion of the Court. A motion has been made to dismiss this appeal, and was heard at the same time that the case was argued upon its merits. We would be well satisfied if it could be entertained, as it presents some interesting questions, which have been argued with more than usual ability. The decree was passed and filed on the 12th day of November, 1873, and the appeal was not taken until the 27th of August, 1874, — more than nine months from the date of the decree.

But it is contended that the petition for a rehearing, which was filed before the expiration of the term during which the decree was passed, suspended it, and that the appeal could not be taken until the petition had been finally acted upon, which was not until August, 1874, when it was dismissed. No authority has been cited to sustain this position, and we do not suppose that any can be found. The rule in Equity has been different, and the decree is considered as operative from its date, notwithstanding the filing of a petition for a rehearing, unless a special order has been passed, before it becomes enrolled, suspending it. In the case of Bennett vs. Bennett, 5 Gill, ⁴⁸⁷ 463 , there was a motion to dismiss upon the ground that the appeal was prayed inore than nine months after the date of the decree.

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