Under the eleventh section of the Act of June 1, 1872, "to
further the administration of justice" (and which allows any person
desiring to have a judgment, decree, or order &c., reviewed on
error or appeal, and to stay proceedings during the pendency of
such writ of error or appeal, to "give the
security
required by law therefor within sixty days after the rendition of
such judgment, decree, or order," &c.), it is not necessary to
make it a supersedeas that the writ of error be served as was
required by the twenty-third section of the Judiciary Act, or the
supersedeas bond be filed, within ten days (Sundays excepted) after
the rendering of the judgment complained of. The supersedeas bond
may be executed within sixty days after the rendition of the
judgment, and the writ may be served at any time before or
simultaneous with the filing of the bond.
On motion by Mr. J. Hubley Ashton for a supersedeas to the
Supreme Court of Colorado Territory and the District Court in and
for the County of Arapaho in that territory. The case was thus:
The Judiciary Act of 1789, after enacting by its twenty-second
section that final judgments in the circuit court may be examined
and reversed, or affirmed in the Supreme Court, the citation being
in such case signed by a judge of the circuit court or Justice of
the Supreme Court, and the adverse party having at least thirty
days' notice, continues:
"And every justice or judge signing a citation on any writ of
error as aforesaid shall take good and sufficient security
Page 86 U. S. 420
that the plaintiff in error shall
prosecute his writ to
effect, and answer all damages and costs if he fail to make his
plea good."
The next section, however, thus proceeds:
"SECTION 23. A writ of error as aforesaid shall be a
supersedeas and stay of execution in cases
only
where the writ of error is served by a copy thereof being lodged in
the clerk's office, where the record remains, within
ten
days (Sundays exclusive) after rendering the judgment complained
of, until the expiration of which term of ten days executions shall
not issue in any case where a writ of error may be a
supersedeas."
By an act of 1803 amendatory of the Judiciary Act, "appeals"
were made subject to the same rules, regulations, and restrictions
as were prescribed in cases of writs of error.
Under these and other enactments, [
Footnote 1] and under rules of court and judicial
decisions, it had been long settled that when the writ of error was
not a supersedeas and did not stay execution, the security (in
practice, a bond) required was to be only to such an amount as
should be sufficient to answer all such
costs as upon an
affirmance of the judgment or decree might be adjudged or decreed
to the respondent in error, but that when the writ of error would
operate as a supersedeas, the supersedeas bond in the circuit court
must be taken with good and sufficient security that the plaintiff
in error or appellant shall prosecute his writ of appeal to effect,
and answer all damages and costs if he fail to make his plea good.
And that such indemnity, where the judgment or decree is for the
recovery of money not otherwise secured, must be for the whole
amount of the judgment or decree, including just damages for delay
and costs and interest, on the appeal.
It had been long equally settled, when the writ of error was
meant to operate as a supersedeas, that unless the complete
security required was given within ten days, the writ could not be
a supersedeas, the approving and filing of the supersedeas bond, or
security, within ten days being as much
Page 86 U. S. 421
obligatory as the service of the writ and lodging the copy
within that time, these latter things, though so much matter of
form, being made indispensable under the words of the twenty-third
section of the Judiciary Act. The supersedeas bond, however,
obviously is, to the party having the judgment whereon execution is
stayed, the practically important part of the matter.
In this state of things, Congress, by the eleventh section of an
Act of June 1, 1872, entitled
"An act to further the
administration of justice," thus enacted:
"Any party or person desiring to have any judgment, decree, or
order of any district or circuit court reviewed on writ of error or
appeal, and to stay proceedings thereon during the pendency of such
writ of error or appeal, may give the
security required by
law therefor
within sixty days after the rendition of such
judgment, decree, or order, or afterward, with the permission
of a justice or judge of the said appellate court."
But while this new enactment allowed the party desiring to have
a judgment &c., reviewed, to give the
security
required by law within
sixty days, it said nothing about
the old matter of lodging a copy of a writ of error "in the clerk's
office where the record remained," nor indeed anything about making
writs of error or appeals a supersedeas at all. It said simply that
the party desiring to take a writ of error &c., "may give the
security required by law therefor within sixty days," &c. And
the enactment thus contained obviously the germ of certain
questions, as
ex. gr.:
1st. Whether -- without repealing any other provisions of the
twenty-second and twenty-third sections of the old Judiciary Act,
and the practice as settled by judicial decision upon it, and which
required the security to be given within ten days -- the new act
meant only to enlarge the time for giving the
security,
leaving it still obligatory on the party desiring to take a writ of
error, to serve as formerly his writ, by lodging a copy "in the
clerk's office where the record remained, within ten days,"
&c., and to
file within that time the supersedeas
bond.
Page 86 U. S. 422
2d. Whether it meant to supersede the entire provision of the
old law with regard to the
time within which the acts
necessary to be done by the party to entitle him to a stay of
proceedings were required to be performed, requiring, however, the
same old
acts, including a service of the writ in the form
prescribed, to be done. Or finally, and
3d. Whether it meant to dispense entirely with everything,
including perhaps the provision that no execution shall issue
within ten days, but the most practically important matter, the
giving of the security required by law, and meant to enlarge the
time for doing this until sixty days after the rendition of the
judgment.
Immediately on the passage of this act, Mr. Phillips,
confessedly the highest authority not judicial, in a matter of
practice, in a new edition of his "Statutory Jurisdiction and
Practice of the Supreme Court of the United States," [
Footnote 2] called attention to the
"questions not without difficulty, suggested by a comparison of the
two acts" -- the act, namely, of 1872, and the old Judiciary Act.
And -- while presenting in his book the act at large in order that
before the interpretation of it should be passed upon and settled
by the judgments of the court, the practitioner who was compelled
to construe it, might "decide for himself the questions suggested,"
and acknowledging the difficulties and embarrassments necessarily
attendant on the expression of his own opinion in advance as to the
proper interpretation of its several sections -- that acute and
learned author inclined, in the absence of judicial decision on the
new law, to think:
"That while the law has secured the
right to stay
proceedings by giving security in sixty days, the party is still
bound to lodge his writ as required by the Act of 1789 within ten
days, and that in the absence of a supersedeas bond filed within
that period, the execution may issue. But that if within sixty days
the bond is filed, then the judge may take such action for its stay
or recall or give such order as the circumstances of the case may
require to stay proceedings
Page 86 U. S. 423
"
And this view, in his judgment, was "fortified by the provision
that this security may be given
at any time after the
sixty days with the permission of a judge of the appellate
court."
The idea which was at the foundation of the learned author's
view obviously was that as this Court had frequently decided that
the writ of error and the appeal were the means by which the
Supreme Court was enabled to exercise the appellate power, matters
connected with them could not be matters of form, but raised always
a question of jurisdiction, as was shown by the numerous decisions
dismissing writs or appeals for the least defect about either.
In this state of things, Eyser had obtained a judgment in the
District Court in and for the County of Arapaho, Colorado
Territory, affirmed in the supreme court of the territory, against
the Union Telegraph Company on the 6th of
September,
1873.
On the 8th of October following --
that is to say,
twenty-eight days afterwards -- the telegraph company took a
writ of error, and on
that day duly served a citation to
the adverse party, properly signed by a judge and filed in the
office of the clerk of the court a sufficient supersedeas bond
conditioned and approved according to law.
The writ of error, it will thus be seen, was not sued out
"within ten days after rendering the judgment complained of," and
of course no copy of it was "lodged in the clerk's office where the
record remained," nor any supersedeas bond then given.
In this state of things, the counsel of Eyser, the plaintiff in
the case, assuming, as had been apparently the view of Mr.
Phillips, that the Act of 1872 only enlarged the time within which
"the
security required by law" might be given, and that
what was done by the other side was no supersedeas, applied to the
court below for an execution upon his judgment, notwithstanding the
supersedeas bond &c., given by the other side.
Hereupon the telegraph company applied to this Court,
Page 86 U. S. 424
representing this last-mentioned fact and representing further
that they were afraid an execution would issue, and moved for a
supersedeas to the said court commanding that further proceedings
upon the judgment be stayed pending the writ of error.
Page 86 U. S. 425
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an application for a writ of supersedeas or an order to
the Supreme Court of Colorado Territory, and to the District Court
of the First Judicial District in and for the County of Arapaho in
that territory commanding that further proceedings
Page 86 U. S. 426
upon the judgment in this case be stayed pending the writ of
error whereby the judgment was brought into this Court for review.
The judgment was affirmed by the supreme court of the territory on
the 6th of September, 1873. On the 8th of October following, the
defendant sued out a writ of error returnable to this Court. It was
duly served and returned. On the day last mentioned, a citation was
served on the adverse party and a supersedeas bond in the sum of
$12,000, conditioned and approved according to law, was filed in
the proper office. The plaintiffs in error represent in their
petition that the defendant in error has applied to the supreme
court of the territory for an order that execution issue on the
judgment, notwithstanding the writ of error and the supersedeas
bond, and that they are apprehensive such an order will be made.
Hence this application here.
The twenty-third section of the Judiciary Act of 1789
declares
"That a writ of error as aforesaid shall be 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 judgment remains, within ten days, Sundays
exclusive, after rendering the judgment or passing the decree
complained of."
The second section of the Act of 1803 makes appeals "subject to
the same rules, regulations, and restrictions as are prescribed in
law in cases of writs of error."
The twenty-second section of the Act of 1789 requires
"That every justice or judge signing a citation on any writ of
error as aforesaid shall take good and sufficient security that the
plaintiff in error shall prosecute his writ to effect, and answer
all damages and costs if he fail to make his plea good."
Where the judgment or decree is for money, not otherwise
secured, the bond "must be for the whole amount of the judgment or
decree, including just damages for delay and costs and interest on
the appeal." [
Footnote 3] And
such bond
Page 86 U. S. 427
must be approved and filed within the ten days prescribed for
the service of the writ of error. [
Footnote 4]
Such was originally the state of the law upon this subject. It
frequently subjected parties to great inconvenience, and sometimes
to serious injury. If the writ were not served and the bond given
within ten days from the rendition of the judgment or decree, the
defendant, if it were for money, was liable to be compelled to pay,
although he might ultimately be victor in the litigation. In such
case, he would be out of the use of his money in the meantime, and
finally be compelled to take the chance of getting it back, perhaps
by further litigation. The facts and the law might be for him, and
yet the money be lost. If real estate were involved, he was liable
to be turned out of possession and to lose all benefit from the
property during the same period. It was frequently impossible to
serve the writ and give the bond within the ten days, though both
might readily have been done if more time were allowed.
The eleventh section of the Act of June 1, 1872, was intended to
remedy these evils. That section is as follows:
"That any party or person desiring to have any judgment, decree,
or order of any district or circuit court reviewed on writ of error
or appeal, and to stay proceedings thereon during the pendency of
such writ of error or appeal, may give the security required by law
therefor within sixty days after the rendition of such judgment,
decree, or order, or afterward, with the permission of a justice or
judge of the said appellate court."
These provisions are remedial, and therefore to be construed
liberally. So far as there is any conflict with the preexisting
rules, the latter must yield. The intention of the lawmaker
constitutes the law. [
Footnote
5] What is clearly implied in a statute is as effectual as what
is expressed. [
Footnote 6] It
is expressly declared that the supersedeas bond may be executed
within sixty days after the rendition of the judgment, and
Page 86 U. S. 428
later, with the permission of the designated judge. It is not
said when the writ of error shall be served. Its issuance must, of
course, precede the execution of the bond, and, as the judge who
signs the citation is still required to take the bond, we think it
is sufficiently implied that it may be served at any time before,
or simultaneously with, the filing of the bond. Indeed, the giving
of the bond alone is made the condition of the stay. The section is
silent as to the writ. A construction which requires the service to
be still within ten days from the rendering of the judgment is, we
think, too narrow. It is sustained by no sufficient reason, and
would largely defeat the salutary purposes of the statute. The
execution, approval, and filing of the bond are substantial. The
filing of the writ is matter of form. Form, under the
circumstances, must not be allowed to defeat substance where the
consequences would be of so serious a character. The application of
the plaintiffs in error is founded upon this section. As we
construe it, their case is within it.
The order asked for will be directed to issue unless this
opinion shall render that procedure unnecessary.
[
Footnote 1]
Act of December 12, 1794, 1 Stat. at Large 404.
[
Footnote 2]
Second edition, p. 107.
[
Footnote 3]
29th Rule of this Court.
[
Footnote 4]
Adams v. Law,
16 How. 144;
Hudgins v.
Kemp, 18 How. 533.
[
Footnote 5]
United States v.
Freeman, 3 How. 565.
[
Footnote 6]
United States v.
Babbit, 1 Black 61.
MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE DAVIS,
dissenting:
Writs of error at common law, when bail was duly entered,
operated as a supersedeas, but the twenty-third section of the
Judiciary Act provides that a writ of error shall be a supersedeas
and stay 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 within ten days, Sundays exclusive, after
rendering the judgment or passing the decree. Such writs, as
provided in the preceding section of that act, may be brought
within five years after the judgment is rendered or the decree is
passed, and that section also provides that every justice or judge
signing a citation on any writ of error as aforesaid shall take
good and sufficient security that the plaintiff in error shall
prosecute his writ to effect and answer all damages and costs if
he
Page 86 U. S. 429
fail to make his plea good. [
Footnote 2/1] Under that provision, this Court decided
that the security to be taken from the plaintiff in error by the
justice or judge signing the citation must be sufficient to secure
the whole amount of the judgment. [
Footnote 2/2] Where the writ of error is not a
supersedeas and does not stay execution, the security required and
taken by the justice or judge signing the citation shall be only to
such an amount as, in the opinion of the justice or judge taking
the same, shall be sufficient to answer all such costs as, upon an
affirmance of the judgment or decree, may be adjudged or decreed to
the respondent. [
Footnote 2/3] But
where the losing party desires to make the writ of error a
supersedeas and to stay execution, he must sue out the writ and
serve the same by lodging a copy thereof for the adverse party in
the clerk's office within ten days, Sundays exclusive, after the
judgment is rendered or the decree is passed, and give the security
required by the prior section in a sum sufficient to secure the
whole amount of the judgment, except in certain special cases, as
provided in the twenty-ninth rule of this Court. Within that
period, it is the absolute right of the party to adopt the
necessary measures to stay execution pending the writ of error or
appeal, and in order that he may not be prejudiced in the enjoyment
of that right, the same section of the Judiciary Act provides that
until the expiration of ten days no execution shall issue in any
case where a writ of error may be a supersedeas, and also makes
provision, in case the judgment or decree is affirmed, that the
court affirming it may adjudge just damages to the respondent in
the writ of error for his delay, and single or double costs, at
their discretion. Repeated decisions of this Court have established
the rule that neither a writ of error nor an appeal is a
supersedeas under the Judiciary Act unless the required security be
given within the ten days mentioned in the twenty-third
Page 86 U. S. 430
section of the act. [
Footnote
2/4] Compliance with the conditions specified in the
twenty-third section of the Judiciary Act must be shown in order
that the writ of error or appeal may operate as a supersedeas and
stay execution, and the rule is also well settled that if the writ
of error be not sued out in time to operate as a supersedeas this
Court cannot award a stay of execution. [
Footnote 2/5] Unless the requirements of the Act of
Congress are complied with, within the ten days allowed for the
purpose, no court can make a writ of error or appeal operate as a
stay of execution under the Judiciary Act. [
Footnote 2/6]
Grant all that, when the question is tested by the Judiciary
Act, still it is insisted that the twenty-third section of the
Judiciary Act is repealed by eleventh section of the act entitled
"An act to further the administration of justice," [
Footnote 2/7] so as to substitute sixty days in the
place of ten days as provided in the former act.
By that act it is provided that the plaintiff in error or
appellant in such a case
"may give the security required by law therefor within sixty
days after the rendition of such judgment, decree, or order, or
afterwards, with the permission of a justice or judge of the said
appellate court."
Undoubtedly the security required by the twenty-second section
of the Judiciary Act to be given to prosecute the appeal with
effect may be given within sixty days from the date of the judgment
or decree, but the act to further the administration of justice
contains no provision whatever making writs of error or appeals a
supersedeas, or giving them the effect to stay execution under any
circumstances. They have that operation and effect by virtue of the
twenty-third section of the Judiciary Act
"in cases only where the writ of error is served by a copy
thereof being lodged for the
Page 86 U. S. 431
adverse party in the clerk's office . . . within ten days,
Sundays exclusive,"
from the date of the judgment or decree. No provision of a
different character upon that subject is enacted in the new act,
nor does it contain a word repugnant to the language or the
requirements of the former provision. Execution is required to be
stayed by the former provision for the term of ten days, but the
new law does not contain any regulation upon that subject.
None of these suggestions can be controverted, but the argument
is that inasmuch as Congress has extended the time for giving the
security to prosecute the appeal to sixty days, it follows that the
writ of error may be served within that time and still have the
effect of a supersedeas, although the only section of the Act of
Congress which gives it that effect provides that it shall have
such an operation in cases only where the service is made by
lodging a copy of it in the clerk's office for the adverse party
within ten days.
Ten days from the date of the judgment or decree is allowed by
the former law to serve the writ of error, but the new act allows
to a party desiring to stay proceedings sixty days to give the
required security, and it even goes further and permits it to be
given afterwards, with the permission of a justice or judge of the
appellate court.
Questions not without difficulty, says Mr. Phillips, are
suggested by a comparison of these two acts as the time within
which the security is to be given is alone acted on by the new act.
Based on that suggestion, the author inquires, very pertinently as
it seems to me, does this alteration carry along with it a change
of all the other provisions of the old act as to the lodging of the
writ of error in the clerk's office within ten days and the
provision that no execution shall issue within the ten days? The
answer to the question, as given by the author, is directly opposed
to the opinion just read, which appears to proceed upon the ground
that inasmuch as a change has been made in one of the conditions
essential to a valid supersedeas, it follows that the same change
must be considered as made in all the other conditions, even though
the new act contains no other language
Page 86 U. S. 432
to express any such intention, which, as it seems to me,
reverses the standard rule of construction as expressed in a
valuable maxim often quoted and applied in such discussions --
expressio unius est exclusio alterius. If Congress had
intended to make other alterations in the prior regulations upon
the subject, it is fairly to be presumed they would have said so,
as it is always to be presumed that the legislature, when it
entertains an intention, will express it in clear and explicit
terms. [
Footnote 2/8] If the
legislature intended more, said Lord Denman in
Haworth v.
Ormerod, [
Footnote 2/9] we can
only say that according to our opinion, they have not expressed it,
to which it may be added that the better rule of construction is to
hold that the legislature meant what they have actually expressed,
unless some manifest incongruity would result from doing so or
unless the context clearly shows that such a construction would be
erroneous. [
Footnote 2/10] Words
may sometimes be transposed, but they cannot be inserted. [
Footnote 2/11] Intention, it is true,
should govern, but it must be such an intention as the legislature
have used fit words to express. [
Footnote 2/12] Repeals by implication are not favored.
[
Footnote 2/13] On the contrary,
the leaning of the courts, says MR. JUSTICE SWAYNE, [
Footnote 2/14] is against the doctrine,
if it be possible to reconcile the two acts of the legislature
together. Our best judgment is, says Mr. Phillips, that while the
law has secured the right to stay proceedings by giving security in
sixty days, the party is still bound to lodge his writ, as required
by the Judiciary Act, within ten days, and that in the absence of a
supersedeas bond filed within that period, the execution may issue,
and in that view I concur, and consequently dissent from the
direction and opinion of the court. Service of the writ of error by
lodging a copy thereof in the clerk's office for the adverse party
within ten days,
without more, will not
Page 86 U. S. 433
effect a stay of execution, but if the security required is
given within sixty days the supersedeas becomes effectual from the
time the required security is given.
[
Footnote 2/1]
1 Stat. at Large 85.
[
Footnote 2/2]
Catlett v.
Brodie, 9 Wheat. 553;
Stafford v. Union
Bank, 16 How. 140.
[
Footnote 2/3]
1 Stat. at Large 404.
[
Footnote 2/4]
Stafford v. Union
Bank, 16 How. 135;
Same
Case, 17 How. 275;
Green v.
Van Buskerk, 3 Wall. 448;
Silsby v.
Foote, 20 How. 290;
Adams v.
Law, 16 How. 144;
Hudgins v.
Kemp, 18 How. 531.
[
Footnote 2/5]
Saltmarsh v.
Tuthill, 12 How. 387;
Wallen v.
Williams, 7 Cranch 278;
Hogan v.
Ross, 11 How. 294.
[
Footnote 2/6]
The Roanoke, 3 Blatchford 390.
[
Footnote 2/7]
17 Stat. at Large 198.
[
Footnote 2/8]
Potter's Dwarris 219.
[
Footnote 2/9]
6 Q.B. 307.
[
Footnote 2/10]
Rex v. Banbury, 1 Adolphus & Ellis 142.
[
Footnote 2/11]
Lamond v. Eiffe, 3 Q.B. 910.
[
Footnote 2/12]
Potter's Dwarris 182;
Brewer v.
Blougher, 14 Pet. 178.
[
Footnote 2/13]
Wood v. United
States, 16 Pet. 342.
[
Footnote 2/14]
McCool v.
Smith, 1 Black 470.
