74 U.S. 574
19 L.Ed. 100
7 Wall. 574
December Term, 1868
THIS was a motion for writs of supersedeas to the Supreme Court of the District of Columbia to stay execution upon two judgments recovered in that court, one by Harris, against the Baltimore and Ohio Railroad Company, and the other by his administratrix, against the same defendant.
The first judgment was for injuries sustained by Harris, when a passenger on the defendant's railroad. The second was a judgment upon scire facias, to revive the former judgment, abated by the death of Harris, and to make his administratrix party to that judgment, and to have execution.
To bring the first judgment into this court for review, a writ of error had been sued out by the railroad company, and a sufficient bond for prosecution was filed, within ten days after rendition; but no copy of the writ of error appeared to have been lodged in the clerk's office for the use of the defendant in error.
The twenty-third section of the Judiciary Act thus declares:*
'A writ of error shall be a supersedeas, and a stay of execution, in cases only where the writ of error is served by a copy thereof being lodged, for the adverse party, in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment and passing the decree complained of.'
Messrs. Bradley and Buchanan, in support of the motion.
Messrs. Davidge and Fuller, contra.
The CHIEF JUSTICE delivered the opinion of the court.
The right of the plaintiff in error to the writs for which the motion now before us is made, depends on the question whether, by the proceedings taken in the case, the writ of error upon the first judgment became a supersedeas?
And this question is answered by the express words of the twenty-third section of the Judiciary Act.
The legislature has seen fit to make the lodging of a copy of the writ, within ten days, a prerequisite to the operation of the writ as a supersedeas. The cause was removed from the inferior court to this court, by the issuing of the writ, and the due service of it upon the court to which it is addressed; but its additional effect, as a supersedeas, depends upon compliance with the conditions imposed by the act. We cannot dispense with that compliance in respect to lodging a copy for the adverse party.
The motion for writs of supersedeas in both cases must, therefore, be DENIED; and as the second writ of error brings nothing before us, unless the writ in the first case operated as a supersedeas under the statute, that writ must be
1 Stat. at Large, 84.