The Eutaw

Mr. Justice CLIFFORD
delivered the opinion of the court.
Cases regularly on the calendar, whether brought here by writ of error or appeal, if within the jurisdiction of the court are required to be heard when reached in the regular call of the docket, and they cannot be heard before they are reached except when they are advanced by the order of the court.
Where the case is one not within the jurisdiction of the court the writ of error or appeal may be dismissed on motion, and certain defects in removiug the cause from the subordinate court into this court entitle the party who prevailed in the court below to the same remedy.
Motions to dismiss are nou-enumerated motions, and they may be filed by leave of court in any case on the calendar before the ease is reached in the regular call of the docket, and they are entitled to preference on Friday in each week during the sitting of the court, as provided in the twenty-seventh rule, but they do not-give either party any right to ' be heard upon the merits of the controversy.
On the ninth of March, 1867, the appellees filed.the libel in the .District Court against the. appellants, as the owners of the steamer Eutaw, her engine, tackle, apparel, &c., in a cause of action founded upon contract civil and maritime. By the second article of the libel it is alleged, that the steamer belonged to the port of New York, that she was engaged in the coasting trade, that in the mouths of November and December prior to the filing of the libel she was in the port of Wilmington, North,Carolina, and that she was in need of supplies, repairs, advances, and necessaries for her -voyage; that the master of the steamer applied to the libellants to make such repairs and to furnish such supplies and advances, and that they, the libellants, complied with- the request, and that there is due to them for such repairs, supplies, and advances, the sum of four thousand dollars. They also alleged that the repairs, supplies, and advances were necessary and proper to render the steamer seaworthy and fit to perform her intended voyage, and that the same were furnished on the credit, of the steamer as well as of the master and owners.
Process was served and the first-named respondent appeared and filed an answer, in his own behalf and in behalf of the other respondent with whom he was impleaded, denying all the allegations of the libel. Subsequent to the filing of the answer an order was passed referring the cause to a master to ascertain and report the amount due to the libellants. Testimony was taken on both sides and the parties were heard and the master repprted that there was due to the libellants the sum of four thousand one hundred and forty dollars and ninety-four cents for the repairs, supplies, and advances made and furnished, as alleged in the libel. No exceptions were taken by either party to the report of the master, and on the ninth of May, 1868, the District Court confirmed the report and entered a final decree in favor of the libellants for that amount.
Dissatisfied with the decree, the respondent appealed to the Circuit Court, where the parties were again heard upon the same testimony. Apparently they were heard without any new reference of the cause and upon the general allegation of the appellant that the decree was erroneous and that the libellants were not entitled to the damages claime.l in the libel and decree. Different conclusions, however, were formed by the circuit judge, as he adjudged that the decree of the District Court should be affirmed with costs, and it is from that decree that the original respondent appealed to this court.
Deferring to the record, it appears that the decree in the Circuit Court was entered on the nineteenth of March, 1870, and the appeal was taken to this court on the nineteenth of May following. Such an appeal is not a supersedeas, but it cannot be dismissed, because no question is raised or presented in the record for the decision of this court.
Appeals are subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error, and it is well-settled law that it is no sufficient cause to dismiss a writ of error that the record does not present any question of law for the revision' of this court,As the writ of error when sued out under the twenty-second section of the Judiciary Act brings up the whole record, and it is the right of the plaintiff” in error to be heard and have an opportunity to show, if he can, that there is error in any part of the record.
When a cause is brought here upon a writ of error sued out under that section, and all the proceedings are regular and correct, the judgment of the Circuit Court must be affirmed, but the cause cannot be dismissed although there is no question presented in the'record for re vision.
Apply that rule to the case before the court and it is clear that the motion must be denied, and it is equally clear that appeals in that, respect are subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error. Appeals of the kind are usually regarded as brought for delay, and it may.become necessary to amend the second article of the twenty-third-rule so that ten per cent, damages shall be allowed in addition to the interest provided for in the first article of that rule.
Motion denied.
Minor et al. v. Tillotson, 1 Howard, 288; 2 Stat. at Large, 244.
Taylor v. Morton, 2 Black, 484; Suydam v. Williamson, 20 Howard 440.