O'Dowd v. Russell,
81 U.S. 402 (1871)

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U.S. Supreme Court

O'Dowd v. Russell, 81 U.S. 14 Wall. 402 402 (1871)

O'Dowd v. Russell

81 U.S. (14 Wall.) 402


1. A notice by one of three defendants to his co-defendants of his intention to prosecute a writ of error, and a refusal by them to cooperate, is equivalent to the old proceeding of summons and severance, and the one defendant can take his writ accordingly.

2. A judgment in a court of last resort that a judgment against A. (who had been sued for not faithfully discharging the duties of a vendue master of a city and been held discharged under the Bankrupt Act) be reversed, is a final judgment within the meaning of the Judiciary Act, as is also a judgment in a court of last resort that a judgment in an inferior court, holding B. and C. (the sureties of A. on his bond as vendue master) liable, be affirmed.

3. When the record does not show that a copy of the writ was lodged within ten days in the clerk's office, nor that the bond was approved and filed within the same term, the writ cannot be made to operate as a supersedeas.

Walker, Jones, and O'Dowd were sued in the Superior Court of Richmond County, Georgia, upon a bond given by

Page 81 U. S. 403

Walker, as principal, and Jones and O'Dowd, as sureties, for the faithful discharge by Walker of his duties as vendue master in the city of Augusta.

The breach alleged was that Walker, having received, as vendue master, certain goods for sale, and having sold them and received the proceeds in his capacity as vendue master, failed to account. The defendants pleaded Walker's discharge under the bankrupt act, and the plea was sustained; but the sureties were held liable under the 33d section of that act notwithstanding the discharge of their principal. Two writs of error were prosecuted upon this judgment to the Supreme Court of Georgia -- one by Jones and O'Dowd to reverse the judgment against them, upon the ground that the discharge of Walker was a bar to the suit against them as sureties, and one by the plaintiff in the action upon the ground that Walker could not avail himself of his discharge, the debt having been created by his defalcation as a public officer and while acting in a fiduciary capacity.

The judgment of the superior court in favor of Walker was, on the 31st of October, 1871, reversed by the supreme court, and the judgment against the sureties on the same day affirmed. To reverse the judgment of the supreme court, O'Dowd prosecuted a writ of error. He had given written notice to both Walker and Jones of his intention to carry the case to this Court and requested their cooperation, but each declined to carry on the controversy longer.

The writ (dated by mistake October 16, 1871), issued November 10, 1871, returnable to the first Monday of December following, and was served by filing in the clerk's office, and the case on that day removed by service of the writ. The bond was dated on that same day, but when it was allowed, or when it was filed, did not appear; nor did it appear that any copy was lodged in the office of the clerk of the Supreme Court for the defendant in error.

Page 81 U. S. 404

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