1. A writ of error or appeal may operate as a supersedeas 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
Page 86 U. S. 662
security required by law therefor within sixty days
after the rendition of such judgment, decree, or order," &c.),
when it is applied for and bond is filed within
sixty days
from the rendition of the judgment or decree.
2. But this does not prevent an execution from being issued
after the lapse of ten days, as contemplated by the twenty-third
section of the Judiciary Act of 1789.
3. The supersedeas under the Act of 1872, by filing the bond
within sixty days, stays
further proceedings, but does not
interfere with what
has already been done.
Thus, where one has been ousted from office by virtue of a writ
on a judgment rendered on the 20th of January, and the writ was
executed by ousting him on the 3d of February, and on the latter
day a supersedeas bond was filed, but subsequently to the execution
of the writ,
held that no relief could be had under the
Act of 1872.
4. In calculating the lapse of time, the date of the
entry of judgment governs, and not the date when the
judgment was read to and signed by the judges.
In this case, which came here on error to the Supreme Court of
the Territory of Idaho, the board of commissioners of Boise County
and B. T. Davis, plaintiffs in error, asked that a writ might issue
from this Court commanding the restoration of the said Davis to the
office of assessor and tax collector of Boise County for the
reason, as was alleged, that he had been ousted from that office by
virtue of a writ issued upon the judgment in the court below, after
the allowance of a writ of error to this Court, which operated as a
supersedeas.
The application was founded on the supposed effect which the
eleventh section of an Act of June 1, 1872, entitled
"An act to
further the administration of justice," had upon certain
provisions of the Judiciary Act.
This last-named act, it will be remembered, 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,
that
Page 86 U. S. 663
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 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.
[
Footnote 1]"
The eleventh section of the Act of 1872, above referred to as
the basis of the application now made, thus enacts:
"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."
The reader who has possessed himself of the case of
Telegraph Company v. Eyser, reported at much length in a
former part of this volume, [
Footnote 2] will, of course, see that the case now
reported presents a sort of complementary one to that, and disposes
of one of the questions there mentioned, the third, as being
involved in the new enactment.
THE CHIEF JUSTICE delivered the opinion of the Court, stating
the facts of the case in it.
In order that a writ of error may operate as a supersedeas, it
is necessary that a copy of the writ should be lodged for
Page 86 U. S. 664
the adverse party in the clerk's office where the record
remains, and that the bond approved by the judge allowing the writ
should also be filed there. [
Footnote 3] Execution cannot issue upon the judgment until
the expiration of ten days, exclusive of Sundays, from the entry
thereof. If the writ of error and bond are filed before the
expiration of the ten days, no execution can issue so long as the
case in error remains undisposed of. After the expiration of the
ten days, an execution may issue. Notwithstanding this, under the
provisions of the Act of 1872, [
Footnote 4] upon the filing of the bond within sixty days
from the time of the entry of the judgment a supersedeas may be
obtained. Such a supersedeas, however, stays proceedings only from
the filing of the bond. It prevents further proceeding under an
execution which has been issued, but does not interfere with what
has already been done.
In this case, the record shows that the judgment was actually
entered on the 20th day of January. The entry as made was read in
court on the morning of the 21st and the record signed by the
judges, but it was ordered to be made on the 20th. The ten days,
exclusive of Sundays, prescribed by the Act of Congress for delay
of execution expired on Saturday, the 31st of January. On Monday,
the 2d of February, a majority of the judges of the court directed
the clerk to issue a writ of restitution to carry the judgment into
effect. On the same day the chief justice of the court allowed a
writ of error and signed the necessary citation. A copy of the writ
of error was filed in the clerk's office, and the writ and citation
actually served upon the defendant in error before the clerk had
completed the preparation of the writ of restitution. After he had
completed its preparation, he handed it to the attorney for the
defendant in error, who had previously been served with the
citation. No supersedeas bond was filed with the clerk on the 2d,
and no notice was given that any had been approved. On the morning
of the 3d of February, the writ of restitution was served and Davis
removed from his office. After this, and on the
Page 86 U. S. 665
same day, a bond approved by the chief justice was left in the
clerk's office by him. It nowhere appears from the record when this
bond was approved. It bears date the 2d of February, but there is
no certificate of the time when the approval was entered. It is
certain, however, that it was not filed in the clerk's office until
after service of the writ of restitution. The writ of error
operated as a supersedeas only from such filing. That was too late
to prevent the removal of Davis from his office in pursuance of the
authority of the judgment, and we cannot now order him to be
restored.
It is claimed, however, that as the record of the judgment was
not signed by the judges of the court until the 21st, the ten days
did not commence to run until that date, and we are referred to the
case of
Silsby v. Foote, [
Footnote 5] as establishing such a rule. In that case, the
decision was actually rendered on the 28th August, but the decree
was special in its terms, and was not settled or signed by the
judge until the 11th December. Before any entry could be made, it
was necessary that the judge should pass upon its form. It was
therefore quite right to delay the appeal until the exact character
of the decree could be known.
Here, however, the form of the judgment was settled upon the
announcement of the decision, and it was entered accordingly.
But the writ of restitution was not served until after the
expiration of ten days from the 21st, and it does not appear that
it was actually delivered to the sheriff for service before that
time. There is nothing to prevent the preparation by the clerk of
an execution before the expiration of the ten days. It cannot be
issued before, and it is not issued until it is placed beyond the
control of the clerk himself. So long as it remains with him, or
under his control, it is like any other paper in his office.
We think the motion must be denied, and in accordance with
the request of the parties made at the argument, the case is
dismissed.
[
Footnote 1]
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.
[
Footnote 2]
See page
86 U. S. 419.
[
Footnote 3]
O'Dowd v.
Russell, 14 Wall. 405.
[
Footnote 4]
17 Stat. at Large 198, ยง 11.
[
Footnote 5]
61 U. S. 20 How.
290.
