Four judges concurred in this decision, namely, McKinstry, Searles,
Patterson, and Temple. Three judges dissented, to wit, Thornton,
Sharpstein, and McFarland.
There then remained pending in the same court the appeal from the
order granting a new trial. It was reasonable that Terry should expect
a favorable decision on this appeal, as soon as it could be reached.
This accomplished, he and Sarah Althea thought to enter upon the
enjoyment of the great prize for which they had contended with such
desperate energy. Terry had always regarded the decree of the Circuit
Court as a mere harmless expression of opinion, which there would be
no attempt to enforce, and which the state courts would wholly ignore.
Whatever force it might finally be given by the Supreme Court of the
United States appeared to him a question far in the future, for he
supposed he had taken an appeal from the decree. This attempted appeal
was found to be without effect, because when ordered the suit had
abated by the death of the plaintiff, and no appeal could be taken
until the case was revived by order of the court. This order was never
applied for. The two years within which an appeal could have been
taken expired January 15, 1888. The decree of the Circuit Court had
therefore become final at that time.
CHAPTER VII.
THE BILL OF REVIVOR.
It was at this stage of the prolonged legal controversy that Justice
Field first sat in the case.
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