After a case has been docketed and dismissed under the
forty-third rule of court, and the plaintiff in error sues out
another writ of error, this Court will, when the case appears to
require it, order a supersedeas to stay all proceedings pending the
second writ of error.
The supersedeas is issued under the fourteenth section of the
Act of 24 September, 1783.
At the preceding term of this Court, namely, on 28 February,
1845, Mr. Howard, on behalf of the defendant in error, moved for
leave to file a certificate that a writ of error had been sued out,
and for an order to docket and dismiss the case under the
forty-third rule of Court.
This order was accordingly passed, and at the close of the term,
no record having been filed by the plaintiffs in error, the case
was dismissed.
At the present term, Mr. Crittenden, counsel for the plaintiffs
in error, filed the following affidavit, namely:
"UNITED STATES OF AMERICA,
Southern District of
Mississippi."
"This day William Hardeman personally appeared before me,
commissioner &c., for taking affidavits in civil cases &c.,
and made oath, that some time during the last summer, and many
months
Page 45 U. S. 641
previous to the session of the present term of the Supreme Court
of the United States, he applied to the Clerk of the Circuit Court
of the United States for the Southern District of Mississippi to
know what he should do in relation to the record in the case of
Edward Anderson against the said Hardeman and others, on a writ of
error from said circuit court, and the said clerk then told this
affiant that he would prepare and send up to the Supreme Court of
the United States the transcript of the record in said cause, and
that all affiant would have to do would be to procure sureties for
costs of suit in the Supreme Court. Trusting to this, and fully
believing that said transcript would be duly sent up by the clerk
to the Supreme Court, this affiant applied to Daniel W. Dickenson,
a member of Congress, and amply solvent, to become his surety for
the costs of the Supreme Court, which he promised to do. The said
Dickenson was taken sick, and, as he informed affiant, had written
to Joseph H. Peyton and Mr. Rayner, members of Congress, to become
the sureties for costs. Affiant has been informed this day for the
first time, by his counsel in the circuit court, that the
transcript of said record had not been forwarded by the clerk as
aforesaid. Affiant sends the same accompanying this affidavit, and
prays that said record be filed and the case docketed, and if said
suit be dismissed, that the same be set aside, the record filed,
and the case docketed."
"WILL. HARDEMAN"
"Sworn to and subscribed before me on 26 February, A.D.
1845."
"THOS. SHACKELFORD"
"
United States commissioner of Affidavits &c."
"
for the Southern District of Mississippi"
Mr. Crittenden thereupon submitted the following motion,
viz.:
"HARDEMAN ET AL. v. ANDERSON"
"This case was depending before this Court at its last term,
upon writ of error operating as a supersedeas, and was then
dismissed because the record was not filed. The cause of the
failure to file is accounted for and explained in the affidavit now
submitted to the Court. The affidavit was received here within a
few days after the close of the last term, and too late, of course,
to make the intended motion to set aside the dismission. Since
then, the plaintiffs have sued out another writ of error, and
executed another bond &c., but this not operating
per
se as a supersedeas, the plaintiffs are exposed to execution
on the judgment below; they therefore move the Court for a
supersedeas,"
&c.
This motion was sustained by Mr. Crittenden, who contended that
the plaintiffs in error had used all reasonable exertion to have
the record brought up in time, and referred to the case of
Stockton v.
Bishop, 2 How. 74.
Page 45 U. S. 642
Mr. Howard opposed the motion. It did not appear that all
reasonable exertion had been used by the party. The judgment
appealed from was given in May, 1840, and the case was not docketed
and dismissed until February, 1845. In the meantime, the plaintiff
in error appears to have relied upon the clerk of the court below
to send the record up. The effort to obtain security for costs was
very faint. If such reasons are allowed to be sufficient to
reinstate a case after dismissal under the rule, the rule itself
may as well be abolished. Certainly, a court which passes a rule
has power to relax it, whenever a proper occasion shall offer. But
this motion does not apply to a case which has been dismissed. It
is not to reinstate that case, but it is to call forth the power of
the court in another case, upon another writ of error. The act of
Congress divides appeals into two classes, giving to them very
different rights. Where the party is diligent and prosecutes his
writ of error without delay, the law gives a supersedeas. But if he
is dilatory, the law is reluctant to deprive him of the benefit of
an appeal, but subjects him to the risk of an execution. Thus the
rights of creditor and debtor are both protected. But in order to
prevent a vexatious and lingering suit and to supply an omission in
the act, a rule of court compels the appellant to prosecute his
suit under the penalty of dismissal by an application from the
appellee. The appellant has his choice either to prosecute his
appeal with or without the benefit of a supersedeas, and the act of
Congress has made a clear distinction between these two modes. But
the present motion is to take a case out of one of these classes
and put it in the other.
The case of
Stockton v. Bishop does not apply, because
every step required by the act of Congress was taken in that case;
and this Court not only can, but ought to, protect cases which are
in regular progress towards it, according to all the forms of
law.
MR. JUSTICE McLEAN delivered the opinion of the Court, directing
the following order to be passed.
"WM. AND D. HARDEMAN AND WM. P. PERKINS, PLAINTIFFS IN ERROR v.
EDWARD ANDERSON."
On consideration of the motion made in this cause on a prior day
of the present term of this Court, to-wit, on Friday the 9th
instant, by Mr. Crittenden, of counsel for the plaintiffs in error,
for a writ of supersedeas to stay execution on the judgment below
in this cause, and of the arguments of counsel thereupon had, as
well against as in support of the motion, it is the opinion of this
Court that a supersedeas should be allowed, under the general
powers conferred upon this Court by the fourteenth section of the
act of 24 September, 1789, leaving the question, whether a writ of
error will lie to the judgment in this case, an open one.
Whereupon
Page 45 U. S. 643
it is now here considered and ordered by this Court, that a writ
of supersedeas be and the same is hereby awarded, commanding the
judges of the Circuit Court of the United States for the Southern
District of Mississippi to stay any execution or proceedings on the
judgment of the said circuit court in this case pending this writ
of error, and also command the marshal of the United States for the
said district that from every and all proceedings on execution or
in any wise molesting the said plaintiffs in error on account of
the said judgment, he entirely surcease, the same being
superseded.
26 January, 1846.
"
Supersedeas"
"UNITED STATES OF AMERICA, sct.: "
"The President of the United States of America to the Honorable
the Judges of the Circuit Court of the United States for the
Southern District of Mississippi, and to the Marshal of the United
States for the said district, Greeting: "
"Whereas lately, in the said circuit court before you, the said
judges, or some of you, in a cause lately pending in said court
between Edward Anderson, plaintiff, and William Hardeman and D.
Hardeman, defendants, a judgment was rendered by the said circuit
court, at the May term, 1839, of said court, in favor of the said
plaintiff, and against the said defendants, for the sum of
$8,293.45, with interest thereon at the rate of eight percentum per
annum, together with costs and charges of suit, on which judgment
an execution of
fieri facias issued, and was levied by the
marshal of said district on certain property of said defendants,
which property was left in the hands of the defendants upon their
executing a forthcoming bond, with one W. P. Perkins as security,
and which forthcoming bond was returned by the said marshal to the
said circuit court at the next November term thereof, A.D. 1839,
'Forfeited,' having thereby, according to the laws of Mississippi,
the force and effect of a judgment against the said defendants and
the said security for the aforesaid debt, interest, and costs, and
upon which last-mentioned judgment an execution of
fieri
facias was issued against the goods and chattels, lands and
tenements, of the said William Hardeman, D. Hardeman, and W. P.
Perkins, for the amount of the said judgment, interest, and costs,
as aforesaid, as also for the sum of $133.81 additional costs
subsequently accruing; upon which execution, the aforesaid marshal
returned that he had received thereon '$9,125 in Union money, or
post notes of the Union Bank,' which said return of the marshal
last aforesaid the said circuit court, at a subsequent term,
to-wit, on 20 May, A.D. 1840, set aside, and awarded an alias
fieri facias on the judgment last aforesaid. Whereupon,
the said Wm. Hardeman,
Page 45 U. S. 644
D. Hardeman, and W. P. Perkins sued out a writ of error in due
form of law and in proper time, and filed their bond in error, with
sufficient security approved by one of the judges of the said
circuit court, so as to operate
per se as a supersedeas,
and which said writ of error was abated and quashed by the order of
this Court on 28 February, A.D. 1845, by virtue of the forty-third
rule of court, in consequence of the failure of the aforesaid
plaintiffs in error to file a transcript of the record of the case
with the clerk of this Court, and to have their case docketed, in
compliance with the rules of court. Whereupon, the aforesaid
plaintiffs in error sued out another writ of error in due form of
law, filed their bond in error in a sum double the amount of the
aforesaid judgment, with sufficient security approved by one of the
judges of the aforesaid circuit court, and a citation having been
regularly taken out, served upon the defendant in error, and duly
returned, as by the inspection of the transcript of the record of
the said circuit court, which was brought into the Supreme Court of
the United States by virtue of said writ of error, agreeably to the
act of Congress in such case made and provided, fully and at large
appears. And whereas, in the present term of December, in the year
of our Lord eighteen hundred and forty-five, it is made to appear,
on affidavit to the said Supreme Court of the United States, that
the failure of the aforesaid plaintiffs in error to file the
transcript of the record and docket the writ of error first
aforesaid mentioned, and which operated
per se as a
supersedeas, was not owing to any neglect or fault on their part,
but wholly attributable to the neglect of the clerk of the said
circuit court to make out in due time, and as requested by the said
plaintiffs in error, a transcript of the record, as alleged in said
affidavit, and that in consequence thereof they are exposed to an
execution on the aforesaid judgment. It is thereupon now here
ordered by this Court, that a writ of supersedeas be, and the same
is, hereby awarded, to be directed to the aforesaid marshal,
commanding and enjoining him and his deputies to stay any and all
proceedings upon any execution which may have been issued on the
aforesaid judgment of the said circuit court in said case, and
which has or may come to his hands, and that he return any such
execution with the writ of supersedeas to the said circuit court,
and that the judges of the said circuit court cause any such writ
of execution to be stayed, and to stay any execution or further
proceedings of every kind and character on the judgment of the said
circuit court in this case, pending the aforesaid writ of error in
this Court."
"You, therefore, the Marshal of the United States for the
Southern District of Mississippi, are hereby commanded, that from
every and all proceedings on any execution on the aforesaid
judgment, or in any wise molesting the said defendants on the
account aforesaid, you entirely surcease, as being superseded, and
that you
Page 45 U. S. 645
do forthwith return any such execution in your hands, together
with this supersedeas, to the said circuit court, as you will
answer the contrary at your peril. And you, the judges of the said
circuit court, are hereby commanded to stay any execution which may
have issued as aforesaid, and to stay any execution or further
proceedings on the aforesaid judgment of the said circuit court in
this case, pending the writ of error last aforesaid in this
Court."
"Witness the Honorable ROGER B. TANEY, Chief Justice of said
Supreme Court, this 27 January, in the year of our Lord one
thousand eight hundred and forty-six."
"WM. THOS. CARROLL"
"
Clerk of the Supreme Court of the United States"
