Where a case was dismissed by this Court for want of a citation,
and the plaintiff in error sued out another writ and applied to
this Court for a supersedeas to stay execution in the court below,
the application cannot be granted.
This Court is not authorized to grant a supersedeas unless the
writ of error has been sued out within ten days after the rendition
of the judgment, and in conformity with the provisions of the
twenty-third section of the act of 1789.
The cases of
Stockton and Moore v.
Bishop, 2 How. 74, and
Hardeman
v. Anderson, 4 How. 640, explained.
The following motion and affidavit were filed by the counsel for
the plaintiffs in error,
viz.: :
"This case was depending before this Court at its last term upon
a writ of error, operating as a supersedeas, and was then dismissed
because the record did not show that a citation had been issued and
served on the defendant in error. Since the last term of this
Court, the plaintiffs have sued out another writ of error, executed
another bond, filed a complete record of the
Page 52 U. S. 295
case &c., but they are exposed to execution on the judgment
in the court below; they therefore move the court for a supersedeas
to stay all further proceedings on the judgment below."
"W. S. FEATHERSTON"
"R. DAVIS"
"
Attorneys for Plaintiffs in error"
"Personally appeared before me, Wm. T. Carroll, Clerk of the
Supreme Court of the United States, Winfield S. Featherston, who,
being duly sworn, says that he is informed by R. Davis, of counsel
for Smith Hogan
et al. in the court below, that an
execution has been issued on the judgment in this case, now before
this Court for revision and correction, from the District Court of
the United States for the Northern District of Mississippi. That
said execution is now in the hands of the Marshal for the said
Northern District of Mississippi, to be levied on the property of
said Smith Hogan
et al. and returned to the next June term
of said district court. This affiant further states, that he
believes said information to be true."
"Sworn to in open court, this 11 February, 1851."
"WM. THOS. CARROLL."
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made in this case for a supersedeas to stay
execution upon a judgment rendered in the District Court of the
United States for the Northern District of Mississippi.
The judgment was rendered in December, 1847, and a bond was
filed, and a writ of error lodged in the clerk's office, within ten
days after the judgment, and the record was filed and the case
docketed in this Court near the close of December term, 1848. But
no citation appeared to have been issued for the defendant in
error, and upon that ground the writ was dismissed at December
term, 1849. The act of Congress makes the citation necessary in
order to remove a case to this Court by writ of error.
In October, 1850, after that writ was dismissed, the plaintiff
sued out and lodged in the clerk's office of the district court
another writ, returnable to the present term of this Court, and
gave another bond, and served a citation on the defendant in error
to appear, and filed the record and docketed the case in this
Court. And it appearing by an affidavit filed that an execution has
been issued by the defendant in error upon the judgment in the
district court, this motion is made to stay proceedings upon it
while the writ of error is pending in this Court.
Upon the dismissal of the first writ of error, it ceased to
be
Page 52 U. S. 296
a supersedeas, and the party who obtained the judgment in the
district court was undoubtedly at liberty to enforce it be
execution unless he is stayed by the second writ of error now
pending. And the question presented by this motion is whether this
writ is also a supersedeas. We think it is not. The Act of 1789,
ch. 20, ยง 23, in express terms declares that a writ of error shall
be a supersedeas in those cases only where the writ is served by a
copy thereof being lodged for the adverse party in the clerk's
office where the record remains, within ten days, Sundays
exclusive, after rendering the judgment. The writ before us was not
issued or lodged in the clerk's office for nearly two years after
the judgment in the district court. It cannot, therefore, operate
as a supersedeas.
The cases relied on in support of the motion stand on different
grounds. In
Stockton and Moore v.
Bishop, 2 How. 74, the bond was given and the writ
of error filed and the citation issued within ten days after the
judgment. The act of Congress, therefore, made it a supersedeas.
And when the Court in that case said that these proceedings were in
due season, it was speaking of the time of filing them, by which
they become a supersedeas by the act of Congress, and not of the
time within which a writ of error may be brought to correct the
errors in the judgment.
In the case of
Hardeman v.
Anderson, 4 How. 640, the original judgment, it is
true, was rendered in 1839. But upon referring to the record, it
appears that a controversy arose in the proceedings on the
execution, which were continued from time to time until May 20,
1844. On that day, a judgment, or an order that was regarded as a
judgment, was entered, to which an exception was taken, and it was
upon this judgment or order that the first writ of error was sued
out. The bond, writ, and citation were all within ten days from
this last judgment. And the case was docketed and dismissed at the
succeeding term December, 1844, not on account of any irregularity
or omission in these proceedings, but because the record had not
been filed in this Court.
In May, 1845, after this writ had been dismissed, the plaintiff
sued out another writ of error, and gave bond, and regularly cited
the defendant in error to appear, and filed the record and docketed
the case at the beginning of December term, 1845. And the court
being satisfied from the testimony offered that the omission to
file the record at the preceding term arose from the neglect of the
clerk of the district court, and that the plaintiff was in no
fault, it undoubtedly had the power to reinstate the case, and when
reinstated it would stand in this Court upon the first writ of
error, and not upon the second.
Page 52 U. S. 297
The proceedings in relation to that writ were in due time, and
when docketed in this Court it stayed execution by force of the act
of Congress while the case was here pending. And it was in this
view of the case that the court deemed it their duty to enforce the
stay by awarding a supersedeas. It was upon this ground that the
writ was issued, and not under the removal by the second writ of
error, nor was it issued under the fourteenth section of the act of
1789, as would seem to have been the case, from some mistake or
oversight in framing the orders and entries. For the Court is
unanimously of opinion that, in the exercise of its appellate
power, it is not authorized to award a supersedeas to stay
proceedings on the judgment of the inferior court upon the ground
that a writ of error is pending unless the writ was sued out within
ten days after the judgment, and in conformity with the provisions
of the twenty-third section of the act of 1789. And if the case of
Hardeman v. Anderson had been considered as pending here
by force of the second writ of error, no supersedeas could lawfully
have been issued.
The case now before us was not brought up by the first writ for
want of the citation. There is no ground, therefore, for
reinstating the case in this Court upon that writ. And the second
writ, by which alone it has been brought here, and by virtue of
which it is now pending, was not sued out in time to operate as a
supersedeas, and this Court have not the power to award one.
The motion must therefore be overruled.
Order
On consideration of the motion made by Mr. Featherston for a
writ of supersedeas in this cause and the arguments of counsel
thereupon had as well against as in support thereof, it is now here
ordered by the Court that the said motion be and the same is hereby
overruled.
