STAFFORD ET UX. v. Union Bank of Louisiana, 58 U.S. 275 (1855)
STAFFORD ET UX. v. Union Bank of Louisiana, 58 U.S. 275 (1855)
275
17 How. 275
15 L.Ed. 101
THIS was an appeal from the district court of the United States for the
State of Texas.
It was before the court at the last term, and is reported in 16 How. 135.
It will be seen, by a reference to that case, that the court expressed its
opinion, that where there was a decree in chancery from which an appeal
was taken, in order to make that appeal operate as a supersedeas, the
security given in the appeal bond must be equal to the amount of the
decree, as it is in the case of a judgment at common law.
It will also be seen, that a motion to dismiss the appeal could not be
entertained, because the time had not expired within which the appellant
was allowed to file the record; nor could a motion be entertained to award
a procedendo.
It will also be seen, (p. 141,) that the court suggested a mode of relief, by
moving for a rule on the district judge, to show cause why a mandamus
should not be issued.
Taking the case up at this period of its history it now becomes necessary
to trace the subsequent proceedings.
On the 12th of May, 1854, the Union Bank of Louisiana filed the
following petition:
'To the honorable the justices of the supreme court of the United States:
'The counsel for the Union Bank of Louisiana, in accordance with the
prayer of the petition hirewith filed, on behalf of the said bank, now move
the court to order that a writ of mandamus, in due form, do at once issue
from this court, returnable to the first Friday of the next term thereof,
commanding the Hon. John C. Watrous, judge of the district court of the
United States for the district of Texas, to cause the decree rendered by the
said district court, on the twenty-fifth day of February, 1854, in a certain
cause therein then depending, between the said Union Bank of Louisiana
as complainant, and Josiah S. Stafford, and Jeanette Kirkland Stafford, his
wife, as defendants, to be at once carried into execution, according to the
terms thereof, or, on failure thereof, to show to this court, on the return
day of said writ, why the same has not been done.
'And in case the court do not think fit to make such order, then the counsel
for said Union Bank of Louisiana move the court to grant a rule on the
said district judge, requiring him to show cause, on the first Friday of the
next term of this court, why a peremptory writ of mandamus should not
issue, for the purpose above stated. And in support of this motion, the
counsel refer to the said petition, and to the transcripts therein mentioned.
'R. S. COXE,
'W. G. HALE,
'For the Union Bank of Louisiana.'
On the 15th of May, 1854, a rule was laid upon the district judge, to show
cause, at the next term, why a mandamus should not be issued,
commanding him to cause the decree entered by the said district judge, on
the 25th of February, 1854, between the above parties, to be carried into
execution, according to the terms thereof.
In this position the case stood, at the opening of the present term.
The district judge showed cause in a return, which is set forth, in extenso,
in the order of this court, which follows the opinion in this report; and it
is, therefore, unnecessary here to copy that return.
Shortly after the commencement of the term, Mr. Coxe moved to dismies
the appeal, because the appellants had filed no sufficient bonds; and, also,
that the rule upon the district judge should be made absolute, and a
peremptory mandamus awarded.
The first motion was overruled, and the second granted.
The case was argued for Judge Watrous, by Mr. Robert Hughes, who
contended that the appeal placed the case in the supreme court, and that
the court below had no longer any jurisdiction over it; and cited 1 Overton
Tenn. Rep. 21; 1 Gallison, 503; 6 Wheat. 194; Gilpin's Rep. 34; 9 Wheat.
553.
Mr. Justice McLEAN delivered the opinion of the court.
A motion is made by the counsel for the appellees, to dismiss the appeal,
because the defendants have filed no sufficient bond.
Also, that a rule on the district judge, to show cause why a peremptory
mandamus should not be issued, granted at the last term, be made absolute.
At the last term, a motion was made to dismiss this cause, and to award a
procedendo, on the ground that the appeal bond was insufficient.
On consideration of that motion, the court held, that the bond for $10,000,
given on the appeal from a decree for the payment of $65,000, was insufficient,
as the act of congress requires a bond in the amount of a judgment or decree, to
prosecute the appeal or writ of error with effect.
But the court overruled the motion to dismiss the appeal and award a
procedendo, for the reason that, from the time the appeal was taken, the
appellant was not bound, under the acts of congress and the rules of court, to
enter the appeal on the docket of this court, before the present term.
During the same term, on motion, a rule was ordered on the district judge to
show cause, at the present term, why a mandamus should not be issued,
commanding him to cause the decree entered by the said district judge, on the
25th February, 1854, between the above parties, to be carried into execution
according to the terms thereof.
In answer to the rule the judge states, that having taken what he considered to
be good and sufficient security, as the law required, the cause was appealed to
the supreme court, which removed it from his jurisdiction, and that he had no
power to make an order in the case.
It was the duty of the judge, in allowing the appeal, to take security on the
appeal in the sum decreed; and not having done so, the appellant was not
entitled to a supersedeas of any process necessary to carry the decree into
effect; and the judge was bound to issue it, on application of the plaintiff. The
court, therefore, order that a peremptory mandamus issue, commanding the
judge forthwith to carry the decree into effect.
10
But as the security given was sufficient to bring the cause before the court by
appeal, though not sufficient to suspend the execution of the same, the court
overruled the motion to dismiss the appeal.
Order.
11
The Honorable John C. Watrous, district judge of the United States for the
district of Texas, having filed a return to the rule granted at the last term in this
case, requiring him to appear and show cause, if any he had, why a mandamus
should not be awarded, requiring and commanding him to cause the decree
rendered by the said court, on the 25th day of February, A. D. 1854, in a certain
cause therein then depending, between the said Union Bank of Louisiana, as
complainant, and Josiah S. Stafford and Jeannette Kirkland Stafford, his wife,
as defendants, to be at once carried into execution, according to the terms
thereof, notwithstanding the appeal from said decree, taken by the said
defendants to this court, and the order of the said court that the appeal bond
filed by the said defendants, on the said appeal, operated as a supersedeas to
the said decree of the said court.
12
And the cause shown appearing in the following statement returned by the said
district judge, namely:
13
14
Between Josiah S. Stafford and Jeannette K., his wife, appellants, and the
Union Bank of Louisiana, appellee.
15
The answer of John C. Watrous, judge of the district court of the United States
for the district of Texas, at Galveston, to the rule upon him, to show cause why
a peremptory mandamus should not issue, commanding him in said court, to
discharge the supersedeas to the enforcement of, and to order execution upon
the decree rendered in said court, in favor of the said Union Bank of Louisiana,
and against said Josiah S. Stafford and wife.
16
17
18
This respondent further respectfully submits, that the bond taken and approved,
and upon which the appeal before mentioned was granted, was taken and
executed in full, complete, and perfect conformity to law, and had he power and
authority either in term time or in vacation to make any order in regard to said
supersedeas, or the enforcement of the decree aforesaid by execution, and an
application were made to him for such order, by reason of the said bond not
being in the penalty or to the amount required by law, he would feel himself
constrained to refuse any such order.
19
And these are the causes and reasons which this respondent has to offer why a
mandamus should not issue to enforce a discharge of the supersedeas or an
execution of the decree aforesaid.
20
But he respectfully submits to the judgment of the court, and will enforce, by
order, any direction given by the court in the premises. The respondent
respectfully refers to the brief of the counsel of the said Josiah S. Stafford and
wife, which will be filed in this honorable court, and the authorities therein
referred to, in support and maintenance of the position assumed by this answer.
21
JOHN C. WATROUS.
22
And after due deliberation thereupon, had, it appearing to the court that it was
the duty of the judge, in allowing the appeal, to take security on the appeal in
the sum decreed, and not having done so, that the apellant was not entitled to a
supersedeas of any process necessary to carry the decree into execution, and
that the judge was bound to issue the proper process on the application of the
complainant. It is therefore now here directed and ordered by this court, that a
mandamus be awarded to the district judge of the United States for the district
of Texas, requiring and commanding the said judge forthwith to carry the
aforesaid decree of the said district court of the 25th of February, A. D. 1854,
into effect.
After-Order.
23
This cause came on to be heard on the transcript of the record from the district
court of the United States for the district of Texas, and it appearing to the court
here that a stipulation by the counsel of the respective parties to dismiss this
appeal at the costs of the appellants, has been filed in this cause. It is thereupon,
on the motion of Mr. Coxe, of counsel for the appellee, now here ordered and
decreed by this court that this appeal be and the same is hereby dismissed, with
costs.