Where, no security having been taken at the time of entering an
order allowing an appeal from a decree passed by the Supreme Court
of the District of Columbia sitting in general term, the appellant,
within the time limited by statute, filed with the clerk a bond
with sureties, conditioned according to law and approved by a judge
of that court, by whom, on the same day, a citation was signed,
held that the power of the judge over the appeal and the
security was thereupon, in the absence of fraud, exhausted, and
that the control of the supersedeas as well as of the appeal was
transferred to this Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The final decree in this cause was rendered April 30, 1878. An
order was entered, May 7, on the minutes of the court below,
sitting in general term, allowing an appeal to this Court, but no
security was then taken either for costs or to obtain a
supersedeas. On the 29th of June, being the sixtieth day after the
rendition of the decree, a bond with sureties in the penal sum of
$1,000, conditioned according to law for a supersedeas, was
approved by one of the justices of the court below and filed with
the clerk. There is no allegation that the approval of this bond
was procured by fraud. On the same day, the same justice signed a
citation, which was served July 8. The taking of this security was
not the act of the court, but of the justice. On the twentieth day
of that month, the same justice, being satisfied that the bond he
had taken and approved was "insufficient and inadequate
security,"
"ordered that the appellant, within twenty days, . . . file an
additional bond in the penalty of $3,000, with good and sufficient
surety to be duly approved, and upon such notice as is required
under Rule 116 of this [the Supreme Court of the District]
court."
Within the time required by this order, the appellant presented
to the justice for approval an additional bond for the prescribed
amount, but it does not appear that it was ever accepted. The
appellant fearing, as he alleges, that the court below will proceed
to carry its decree into effect pending this appeal, now
Page 102 U. S. 371
asks that a writ of supersedeas may issue to stay any such
proceeding.
When the original bond of $1,000 was accepted by the justice and
the citation signed, an appeal was allowed and security taken,
which operated as a supersedeas. That transferred the jurisdiction
of the suit appealed to this Court. As this allowance was the act
of the Justice of the Court, and not of the Court itself, no such
question is presented as was decided in
Goddard v. Ordway,
101 U. S. 745,
where we held that if the allowance was the judicial act of the
Court in term time, it might, like any other order in the suit, be
set aside on proper showing during the term. The power of the
Justice over the appeal and the security, in the absence of fraud,
was exhausted when he took the security and signed the citation.
From that time the control of the supersedeas as well as the appeal
was transferred to this Court, and even here, as we held in
Jerome v.
McCarter, 21 Wall. 17, in the absence of fraud, the
action of the Justice or judge in accepting the security, within
the statute and within our rules adopted for his guidance, was
final so far as it depended on facts existing at the time the
security was accepted. It follows that the supersedeas, which
resulted from the taking of the security on the 29th of June, is
still in force and has never been vacated. Consequently the court
below is without power at this time to proceed with the execution
of the decree appealed from, and we will presume that upon an
intimation of that kind from us, it will not attempt to do so.
Should an application be made to us to increase the security on
the ground of a change "in the circumstances of the case, or of the
parties, or of the sureties on the bond," "so that security which
was good and sufficient" at the time it was taken "does not
continue to be so,"
Jerome v. McCarter, supra, or to set
aside the bond which was accepted on the ground that its acceptance
was procured by fraud,
Railroad Company v. Schutte,
100 U. S. 644, we
can then determine whether the supersedeas now in force shall be
vacated; but on the case as it now stands, we think the court below
is without power to proceed in the execution of the decree which
has been appealed from.
Motion denied, without prejudice to its renewal should it be
necessary.