Saltmarsh v. Tuthill
53 U.S. 387

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U.S. Supreme Court

Saltmarsh v. Tuthill, 53 U.S. 12 How. 387 387 (1851)

Saltmarsh v. Tuthill

3 U.S. (12 How.) 387

Syllabus

Where an appeal was taken in a common law case instead of a writ of error, and after the lapse of ten days the plaintiff issued an execution upon his judgment, and the defendant then sued out a writ of error to bring the case up to this Court, it was error in the court below to quash the execution and supersede the judgment.

The appeal did not remove the case, and the writ of error was sued out too late to stay execution. It is immaterial whether it was a mistake of the party or the court.

The question reserved is whether this Court has the power to issue a mandamus to the judge below commanding him to set aside the supersedeas and order the clerk to issue an execution.

A motion was made for a mandamus in this case to compel the district judge to set aside an order of supersedeas and to order the clerk to issue an execution.

The circumstances were these:

At the fall term, 1849, of the District Court of the United States for the Middle District of Alabama, Tuthill obtained a judgment against Saltmarsh in a common law case.

Saltmarsh took an appeal in open court, and at the same time executed an appeal bond, in a penalty of double the amount of the judgment.

After the expiration of ten days, Tuthill caused execution to be issued on the judgment. Before the return of this writ, Saltmarsh sued out a writ of error and filed a writ of error bond.

At the return term of the execution, viz., May, 1850, Saltmarsh moved the court to quash the execution and to supersede the judgment. Both motions were granted. The execution was quashed, and it was further considered and ordered by the court that

"A writ of supersedeas be and the same is hereby awarded commanding the clerk of the District Court of the

Page 53 U. S. 388

United States for the Middle District of Alabama not to issue execution or any other process on said judgment rendered at the December term of this court, in the year of our Lord one thousand eight hundred and forty-nine, while the writ of error to the Supreme Court of the United States is pending, nor until a decision is had thereon. And also to command the marshal of the United States for the district aforesaid that from every and all proceedings on execution, or in any wise molesting the plaintiff in error on account of the said judgment, he entirely surcease, the same being superseded."

The writ of error having brought the case up to this Court, a motion was made by Mr. Pryor and Mr. Seward for a mandamus to compel the district judge to set aside the order of supersedeas and to order the clerk to issue an execution.

1. The order was void for the want of jurisdiction in the court. There was no subject matter in controversy of which the court could take jurisdiction to hear and determine. Judiciary Act, 1789, ch. 20, §§ 22, 23; Act Regulating Appeals, 1803, ch. 40, § 2; Wiscart v. Dauchey, 3 Dall. 327 [argument of counsel -- omitted]; Murdock ex Parte, 7 Pick. 303, 321; Wetherbee v. Johnson, 14 Mass. 412, 420; Livingston v. Jefferson, 1 Brock., 203, 211; The San Pedro, 2 Wheat. 132, 15 U. S. 141; Sarchet v. United States, 12 Pet. 143, 37 U. S. 144; Parish v. Ellis, 16 Pet. 451, 41 U. S. 452-454; United States v. Wouson, 1 Gall. 4, 10-11; Villabolo v. United States, 6 How. 81, 47 U. S. 90-91; United States v. Currey, 6 How. 106, 47 U. S. 112-113; Hudson v. Guertier, 7 Cranch 1; The Avery, 2 Gall. 386, 389; Jackson v. Ashton, 10 Pet. 480, 35 U. S. 481; Ex parte Crenshaw, 15 Pet. 119, 40 U. S. 123; Cameron v. McRoberts, 3 Wheat. 591, 16 U. S. 593; Griffith v. Frazier, 8 Cranch 9, 12 U. S. 10; Patterson v. United States, 2 Wheat. 221, 15 U. S. 225-226; Hickey v. Stewart, 3 How. 750, 44 U. S. 762; United States v. Moore, 3 Cranch 159, 7 U. S. 172-173; Durousseau v. United States, 6 Cranch 307, 10 U. S. 313-314; United States v. Goodwin, 7 Cranch 108; Ex Parte Kearney, 7 Wheat. 38, 20 U. S. 42; Ex Parte Watkins, 3 Pet. 193, 28 U. S. 201; United States v. Nourse, 6 Pet. 470, 31 U. S. 493-497; Wood v. Lide, 4 Cranch 180; Hogan v. Ross, 11 How. 294.

2. But if the court did have jurisdiction, then the jurisdiction was improvidently exercised and this Court ought to issue the mandamus. This Court has a general superintending control over inferior courts of the United States, and may issue such process as is necessary to enable it to make this control effectual. Judiciary Act, 1789, ch. 20, §§ 13, 14; McIntire v. Wood, 7 Cranch 504; McClung v. Silliman, 6 Wheat. 590; Ex Parte Crane, 5 Pet. 190; Life & F. Ins. Co. v. Wilson, 8 Pet. 291, 33 U. S. 306; Marbury v. Madison, 1 Cranch 137.

Page 53 U. S. 389

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