Supreme Court of United States.
*279 Mr. Justice McLEAN delivered the opinion of the court.
This is an appeal in chancery from the district court of Texas.
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 *280 bound to issue it, on the application of the plaintiff. The court, therefore, order that a peremptory mandamus issue, commanding the judge forthwith to carry the decree into effect.
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.
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.
And the cause shown appearing in the following statement returned by the said district judge, namely:
Between Josiah S. Stafford and Jeannette K., his wife, appellants, and the Union Bank of Louisiana, appellee.
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.
The respondent respectfully answers, and certifies, to the honorable the supreme court of the United States, that on the 6th day of March, 1854, in the district court of the United States for the district of Texas, at Galveston, which was within ten days next after the rendition of the decree mentioned in the caption to this answer, the said Josiah S. Stafford and wife, feeling *281 themselves aggrieved by the rendition of the same, in open court, applied for, and prayed an appeal to the next term thereafter, of this court, to be held in the city of Washington on the first Monday in December thereafter: which to them was granted, upon condition that they entered into good and sufficient bond with good and sufficient security in the sum of $10,000, conditioned that they prosecute their appeal with effect, and answer all damages and costs if they should fail to make their plea good, and thereafter and on the same day and year aforesaid, the said Josiah S. Stafford and wife, in open court, tendered a bond with L.C. Stanley, Patrick Perry, and William H. Clark, as sureties, in the sum of $10,000; and the court-having inspected the bond, and being satisfied that it was in conformity to law and the order of the court, and that the sureties were good and sufficient. "It was ordered that the bond be approved, and it was ordered to be entered, that the bond of April, taken and filed in this cause, operates as a supersedeas to the decree of the court," and thereupon and immediately after the order granting said appeal, and the giving bond as aforesaid, and while the same remained in full force, unreversed and not set aside, this respondent respectfully submits, that neither in the said district court, or in vacation, had he any longer jurisdiction over the cause between the parties aforesaid, or any power or authority to make any order in regard to the supersedeas or to enforce the execution of the decree aforesaid for the reason that thenceforward, by virtue of the appeal so taken and perfected as aforesaid, the said cause between the parties aforesaid, had passed into and under the control of this court, and which was the proper forum only in which any such order could or can be rightly made.
This respondent further respectfully submits that though, upon investigation, it should turn out that the bond given for the appeal, as aforesaid, was not taken in all respects in conformity to the requirements of law, but might be irregular and depart from such requirements in regard to the amount of the penalty thereof, or in other respects; yet this did not render the grant of the appeal merely void, or in any manner affect the supersedeas operated by law, but that the said appeal and the said supersedeas was and continued to be in full force and effect, and thus will remain until this court, in conformity to its practice, shall dismiss said appeal, and thereby discharge said supersedeas, on account of a failure by the said Josiah S. Stafford and wife, when thereto required to give such bond as the law requires, within such time as the court may prescribe.
This respondent further respectfully submits, that the bond taken and approved, and upon which the appeal before mentioned *282 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.
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.
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.
JOHN C. WATROUS.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 25th of February, A.D. 1854, into effect.
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.
