OpenJurist

58 US 283 In the Matter of Josiah Stafford and Jeannette Kirkland His Wife v. The New Orleans Canal and Banking Company

58 U.S. 283

17 How. 283

15 L.Ed. 102

IN THE MATTER OF JOSIAH S. STAFFORD AND JEANNETTE
KIRKLAND, HIS WIFE, APPELLANTS,
v.
THE NEW ORLEANS CANAL AND BANKING COMPANY.

December Term, 1854

THIS, like the preceding case of Stafford and Wife v. The Union Bank of Louisiana, was an appeal from the district court of the United States for the State of Texas, and was, in fact, a branch of the same case.

It is unnecessary, therefore, to recite the circumstances of it, which were similar to those of the preceding case.

Mr. Justice McLEAN delivered the opinion of the court.

1

This appeal is subject, in principle, to the objections stated in the above case of Stafford and Wife v. The Union Bank of Louisiana; and, for the reasons stated in that case, a peremptory mandamus is ordered in this one, to carry into effect the decree entered in the district court. The motion to dismiss this appeal is overruled.

Order.

2

The Honorable John C. Watrous, district judge of the United States for the district of Texas, having failed to file any 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 2d day of March, A. D. 1854, in a cert in case therein then depending, between the said New Orleans Canal and Banking Company, as complainant, and Josiah S. Stafford and Jeannette Kirkland, 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; 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 appellant 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 2d of March, A. D. 1854, into effect.

After-Order.

3

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.