Supreme Court of United States.
*155 Mr. Morton P. Henry for the relators.
Mr. Morton P. Henry in support of the motion.
Mr. Henry Flanders against it.
*156 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
It is not stated in the petition that the stipulation was executed under the provisions of sec. 941 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that "judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause." It would seem as though nothing more was needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of ten days after the entry of the decree. In this respect these decrees are like others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is nothing in the decree inconsistent with the provision in the stipulation in respect to the time when execution may issue.
It is no doubt within the power of the court to postpone a decree against the sureties until after the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which makes this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to this court had expired. That was an entirely different question from the one presented here upon a stipulation entered into under section 941.
It is unnecessary to consider whether in law the decree is a lien on the real estate of the stipulators after the appeal. Our inquiry is not as to the effect of the decree, but as to the jurisdiction of the court to enter it. If there was jurisdiction, any *157 error that may have been committed cannot be corrected by mandamus.
As, upon the showing made by the petitioners, we are clearly of opinion they are not entitled to the relief they ask.
The alternative writ is denied.
The stipulators then filed their petition in this court setting forth the same facts, and prayed "this court by an order in this cause to grant relief, by setting aside the said decree as a lien on the real estate of the petitioners, on such terms as the court shall be pleased to pronounce just and equitable, to sureties in a cause pending an appeal; or will be pleased by its mandate to direct or authorize the circuit court to proceed in the said matter in such manner as shall be consonant to the rights of your petitioners and of the libellant; your petitioners submitting themselves in all things to the order to be made on the premises."
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The decree appealed from was against the respondent and his stipulators. If the decree operates as a lien on the real estate of the stipulators, notwithstanding the appeal, it is an advantage the law gives the appellee for his security, with which we ought not to interfere in advance of the hearing of the case on its merits. Whether there is such a lien we do not decide. That is a question which is not presented to us for determination by the appeal.
Motion denied.
