1. A writ of error not sealed until eleven days after the
judgment which it would seek to reverse was rendered, cannot
operate as a supersedeas.
2. Nor one where there has been an omission to serve the
citation before the return day of the writ.
This was a motion for a supersedeas of an execution against the
City of Washington, plaintiffs in error, founded upon a writ of
error, bond and citation, in compliance with the twenty-second and
twenty-third sections of the Judiciary Act.
The twenty-second section referred to enacts that this Court may
examine judgments in circuit courts upon writ of error, to which
shall be annexed and returned therewith, at the day and place
therein mentioned, an authenticated transcript of the record, an
assignment of errors and prayer for reversal, with a citation to
the adverse party, signed &c., and the adverse party having at
least thirty days' notice.
The twenty-third section enacts that this writ of error
"Shall be a supersedeas and stay of execution in cases only
where the writ of error 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 complained of."
In the present case, the judgment was rendered on the 23d of
November, 1867. The writ of error, though made out before and
placed in the clerk's office, was not sealed till the 6th of
December, which was eleven days after the judgment was
rendered.
The term of the court for 1867 began on the 2d of December. The
citation was served on the 6th of that month.
Page 73 U. S. 496
MR. JUSTICE NELSON delivered the opinion of the Court.
The act gave to the city ten days, exclusive of Sundays, to sue
out the writ of error and take the other necessary steps which are
required to operate as a supersedeas. The ten days expired on the
5th of December.
According to the settled practice, if the writ of error is sued
out before the first day of the term, it must be made returnable on
the first day of the next term, and so as to the citation, and if
sued out after, it must be made returnable the first day of the
succeeding term. [
Footnote
1]
The cases cited also show that both the writ and citation must
be served before the return day -- the writ by filing it in the
clerk's office and the citation by serving it on the party or his
attorney or counsel.
In the present case, it is perhaps sufficiently shown that the
writ was placed in the clerk's office before the return day, but it
was not sealed till the 5th of December and until then it was a
nullity. [
Footnote 2] Writs of
error from this Court to the Supreme Court of the District of
Columbia are sued out under the same regulations as in cases of
judgments in the circuit courts of the United States. [
Footnote 3]
The writ therefore, not being sealed till the 5th day of
December, eleven days after the judgment, it was too late to
operate as a supersedeas, and it cannot be amended in this respect,
as was held in
Hodge v. Williams. [
Footnote 4]
But if this objection could have been avoided, the omission to
serve the citation before the return day of the writ is fatal.
[
Footnote 5] It was not served
till 6th of December.
Motion denied.
[
Footnote 1]
Villabolos v. United
States, 6 How. 89,
47 U. S. 90;
United States v.
Curry, 6 How. 106,
47 U. S. 112;
Insurance Co. v.
Mordecai, 21 How. 195.
[
Footnote 2]
Overton v.
Cheek, 22 How. 46; Act of Congress, May 8, 1792, §
9.
[
Footnote 3]
Brightly's Digest, 234, § 5; 12 Stat. at Large 764, § 11.
[
Footnote 4]
63 U. S. 22 How.
87.
[
Footnote 5]
Villabolos v. United
States, 6 How. 89,
47 U. S. 90;
United States v.
Curry, 6 How. 106,
47 U. S. 112;
Insurance Co. v.
Mordecai, 21 How. 195.
