OpenJurist

72 US 188 Ex Parte the Milwaukee Railroad Company

72 U.S. 188

18 L.Ed. 676

5 Wall. 188

EX PARTE THE MILWAUKEE RAILROAD COMPANY.

December Term, 1866

PETITION for a writ of mandamus.

The Circuit Court for the District of Wisconsin having rendered a decree in favor of J. T. Soutter, survivor, &c., against the La Crosse and Milwaukee Railroad Company and the Milwaukee and Minnesota Railroad Company, on the 5th March, 1867, for $40,000, and ordered a sale of the road mortgaged to secure the debt, the last-mentioned company prayed an appeal to this court, which was allowed. For the purpose of staying proceedings on the decree, they offered a bond, in the penalty of $50,000, within the ten days allowed for that purpose, which the district judge declined to approve, but upon which he made the following indorsement:

'March 16, 1867.

'The counsel of complainant having objected to the allowance of this bond for supersedeas, on the ground that all the sureties are non-residents of the district, for this reason this bond is not approved for a supersedeas.

'A. G. MILLER, District Judge.'

The record of the case having been brought into this court on the appeal taken, the appellants now petitioned the court for a mandamus to compel the district judge to approve the bond and allow a supersedeas, or for such other relief in the premises as this court could give.

Messrs. Cram and Cushing, in favor of petition; Mr. Cary, contra.

Mr. Justice MILLER delivered the opinion of the court.

1

Although this court does not concur in the opinion of the district judge, that the fact of the non-residence of the sureties within the district is a sufficient reason for rejecting a bond which is in all other respects unobjectionable, we are not inclined to interfere by mandamus with the discretion of that judge in approving or rejecting a bond offered for his approval. If we had the right to do this, which is extremely doubtful, it is unnecessary, as the remedy which is in our own hands is ample. The case being properly in this court by appeal, we have, by the fourteenth section of the Judiciary Act, a right to issue any writ which may be necessary to render our appellate jurisdiction effectual. For this purpose the writ of supersedeas is eminently proper in a case where the circumstances justify it, as we think they do in the present instance. Hardeman v. Anderson,1 is an example of the exercise of this power precisely in point.

2

We shall therefore make an order, that upon the filing of a bond for the sum of $50,000, with the usual conditions, at any time within thirty days from this date, which shall be approved by the clerk of this court, a supersedeas will issue from this court to the judge of the Circuit Court of the United States for the District of Wisconsin, and to the marshal of the United States for said district, commanding a stay of proceedings on said decree until the further order of this court,

3

THE SAME BEING SUPERSEDED.

1

4 Howard, 640.