Ex Parte Sawyer
88 U.S. 235

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U.S. Supreme Court

Ex Parte Sawyer, 88 U.S. 21 Wall. 235 235 (1874)

Ex Parte Sawyer

88 U.S. (21 Wall.) 235

Syllabus

A decree of the circuit court, affirming on appeal a decree of the district court which had charged a respondent in admiralty with the payment of a sum of money specified and decreeing that the appellee in the circuit court should recover it, and decreeing further that unless an appeal should be taken from the said decree of the circuit court to the Supreme Court within the time limited by law, a summary judgment should be entered therefor against the stipulators on their stipulations given on appeal from the district court, is, as to the stipulators, a provisional decree only, and one which on appeal to the Supreme Court becomes inoperative.

Accordingly, though such an appeal be taken from the decree of the circuit court, and the decree of that court be affirmed and the cause remanded

Page 88 U. S. 236

with instructions to the effect "that such execution and proceedings be had in said cause as according to right and justice and the laws of the United States ought to be had," &c., the circuit court does not lose its power over its previous order as to summary judgment against the stipulators.

And if, on a review of that order, the circuit court from any reason think proper to refuse to order execution against the stipulators, this Court will not compel it by mandamus to order it. Under such a mandate as that above described, the circuit court must itself decide whether execution shall issue against the sureties.

Sawyer and others libeled Oakman in admiralty in the District Court of Massachusetts and got a decree against him. Oakman appealed to the circuit court for that district, but the presiding justice of it, having been counsel in the cause or otherwise disqualified, it was transferred, under the act of Congress providing for such cases, to the Circuit Court for New York Circuit. *

After this transfer, an order was made in the Circuit Court of New York that the decree of the district court be carried into effect unless the appellant gave stipulation by security of himself and two sureties for the payment of all damages and costs on the appeal to the said circuit court and in this Court in the sum of $10,000.

Hereupon Oakman, without its being seen or approved by the court, filed ex parte a certificate, intended as "stipulations," signed by the commissioner of the Massachusetts Circuit, and certifying that Oakman, as principal, and James Lee, Jr., and Wade Davis, as sureties, were bound in $10,000 that Oakman should pay all damages and costs which might be awarded against him in the suit. The paper was not signed by either the principal or the sureties, and herein was not in conformity to the rules about stipulations of the New York Circuit.

On subsequently hearing the appeal, the Circuit Court for New York affirmed the decree of the district court, and

Page 88 U. S. 237

adjudged that the appellees recover of the appellant the sum of $7,970. The decree then proceeded as follows:

"And it is further ordered, adjudged, and decreed that unless an appeal be taken from this decree within the time prescribed by law, a summary judgment therefor be entered in favor of the said libellants, appellees, and against James Lee, Jr., and Wade Davis (sureties on appeal from the district court in the sum of $10,000, the amount of their stipulations by them given on said appeal), and that the said appellees have execution therefor, to satisfy said decree."

Within the time prescribed by law, an appeal was taken to this Court, where the decree of the circuit court was affirmed and the cause remanded with instructions to the effect

"that such execution and proceedings be had in said cause as according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding."

Upon the filing of this mandate, the libellants moved the circuit court for a decree charging the sureties upon the stipulation and ordering execution against them. This motion the circuit judge refused to grant, and instead ordered that the sureties show cause, if any they had, why such execution should not issue. Afterwards, upon cause shown, the court for the first time observed the peculiar form of the paper purporting to be the stipulations, and that it was not executed according to its rules. It accordingly held that the sureties were not liable upon the alleged stipulation, and refused to decree or award execution against them.

The libellants now moved this Court for a mandamus requiring the circuit court to cause such decree and order to be entered.

Page 88 U. S. 238

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