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supersedeas, it is indispensable that the requirements of the act of Congress be strictly fulfilled. It is not enough that the writ be issued and served; but a copy of the writ must be lodged, for the adverse party, within ten days, Sundays exclusive, after judgment or decree. Railroad Co. v. Harris, 7 Wall. 571.
22. (Dec., 1808.) A supersedeas granted, the record showing that a decree dissolving an injunction was made on the 6th of February, a petition for the suspension of the order filed by one party on the same day, by another on the 15th, a petition to open the decree on the 13th ; a motion to rescind, made on the 6th March, during the term at which the decree was rendered, which motion was heard and denied on the 13th, with an appeal prayed in open court on the 20th, and an appeal-bond filed on the 234. , Railroad Co. v. Bradleys, 7 Wall. 575.
23. (Dec., 1869.) A writ of error has the effect to remove the record into the court granting the writ; and when the conditions prescribed in the twenty-third section of the Judiciary Act are complied with, the jurisdiction of the subordinate court is suspended until the cause is remanded from the appellate tribunal. Slaughter - House Cases, 10 Wall. 273.
24. Neither appeals nor writs of error become a supersedeas and stay execution by virtue merely of process issued by this court; but this effect is derived from the Judiciary Act, on complying with its conditions. Ib.
25. When these conditions are complied with, if the subordinate court proceeds thereafter to issue final process, it is competent for this court, in the exercise of its appellate power, to correct the error by a supersedes; and this may be done though the application for the supersedeas is made before the return-day of the writ of error. 16.
26. Where injunctions had been granted in the District Court of the State of Louisiana, and suspensive appeals had
been taken to the Supreme Court of the state, where the decrees granting the injunctions had been affirmed, and a writ of error under the twenty-fifth section of the Judiciary Act sued out to that judgment of affirmance, the writ of error and bond, though filed within ten days of the affirmance, did not authorize this court to enjoin or supersede the action of the District Court in giving effect to the said injunctions subsequent to the issuing of the writ of error. The supersedeas of the act operated alone upon the Supreme Court of the state to wlich the writ of error is directed, under the said twenty-fifth section. Ib.
27. The appeals from the District to the Supreme Court of the state, operated as a stay of execution, and suspended all jurisdiction to proceed further, until the cause was remanded. But when the Supreme Court rendered its final judgment and perpetuated the injunction, whatever conditions were annexed to the appeal were abrogated, as the appeal was then fully executed. 10.
28. (Dec., 1871.) When the record does not show that a copy of the writ was lodged within ten dars 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. O'Dowd v. Russell, 14 Wall. 402.
29. (Dec., 1872.) Where the Circuit Court “decrees that a fund in court belongs to certain persons named), and that their claims be pail, and (the fund not being large enough to pay all the persons in full) orders a distribution by a commissioner, in accordance with the principles laid down by the court, and, on a table of distribution being reported by the commissioner, recites that the commissioner had submitted a distribution based upon the decree theretofore made by the court, and then “orders and decrees that the fund be distributed according to it, the “decree” may be considered as of either date as respects the matter of a supersedeas. Rodů v. Heartt, 17 Wall. 354.
30. As respects the question whether the appeal was in time to operate as a supersedeas, the case is regulated by the act of June 1, 1872, which allows sixty days, and not by the Judiciary Act of 1789. 10.
31. (Oct., 1873.) 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. Telegraph Co. v. Eyser, 19 Wall. 419.
32. (Oct., 1873.) A writ of error or appeal may operate as a supersedeas, under the eleventh section of the act of June 1, 1872, “to furtlier the administration of justice” (and which allows any person desiring to have a judgment, decree, or order, &c., reviewed on crror 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.), when it is applied for and bond is filed within sixty days from the rendition of the judgment or decree. Commissioners v. Gorman, 19 Wall. 661.
33. 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. 15.
34. 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. Ib.
35. 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. 16.
36. (Oct., 1874.) Where a record, brought regularly to this court, on a writ of error and appeal bond, which operate as a supersedeas, shows a judgment quite intelligible and possible, and where a return to a certiorari issued, without prejudice, long after the transcript was filed here, and not long before the case was heard, showed that that judgment had been set aside as improvidently entered, and that one with alterations of a very material character had been substituted for it, this court held, “under the circumstances," that the first judgment was the one which it was called on to reexamine. Edwards v. Elliott, 21 Wall. 532.
37. (Oct., 1876.) Unless an appeal is perfected, or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the decree or judgment complained of, it is not within the power of a justice of this court to allow a supersedeas Kitchen v. Randolph, 3 Otto, 86.
38. (Oct., 1876.) To make a nunc pro tunc order effectual for the purposes of a supersedeas, it must appear that the delay was the act of the court, and not of the parties, and that injustice will not be done. Sage v. C. Railroad Co., 3 Otto, 412.
39. (Oct., 1876.) Where an appeal has been duly taken, the supersedeas which follows from a compliance by the appellant with the act of Congress in that behalf operates to stay the execution of the decree. Goddard v. Ordway, 4 Otto, 672.
40. Should that court, by mistake or otherwise, proceed
to carry its decree into effect [after appeal which operates as a supersedeas], its action may be restrained by the appropriate writ from this court. 16.
41. (Oct., 1879.) A supersedeas will be vacated when the approval of the bond therefor was obtained by fraud and perjury. Railroad Co. v. Schutte, 10 Otto, 614.
42. If it appears that the appellant had knowledge of such fraud and perjury, a new bond will not be accepted. 16.
SUPERSEDEAS - BOND.
43. (Feb., 1816.) Where the final judgment or decree of the highest court of law or equity of a state is re-examinable in the Supreme Court of the United States, the return of a copy of the record, under the seal of the court, certified by the clerk, is a sufficient return to the writ of error. Martin v. Hunter, 1 Wheat. 304.
44. It need not appear that the judge who granted the writ of error did, upon issuing the citation, take a bond, as required by the twenty-second section of the Judiciary Act. That provision is merely directory to the judge; and the presumption of law is, until the contrary appears, that every judge who signs a citation has obeyed the injunctions of the act. 16.
45. (Feb., 1824.) Under the Judiciary Act of 1789, ch. 20, s. 22, the security to be taken from the plaintiff in error, by the judge signing a citation on a writ of error, must be sufficient to secure the whole amount of the judgment, and is not to be confined to such damages as the appellate court may adjudge for the delay. Catlett v.
Catlett v. Brodie, 9 Wheat. 553. 46. (Feb., 1825.) An appeal, under the Judiciary Acts of 1789, ch. 20, s. 22, and of 1803, ch. 353 [xciii.], prayed for, and allowed within five years, is valid, although the security was not given until after the lapse of five years.
The Dos Hermanos, 10 Wheat. 306.