US SUPREME COURT DECISIONS

Where an appeal from a decree in chancery is intended to operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law.

Where the security is insufficient, this Court will, upon motion of the appellee, lay a rule upon the judge below to show cause why a mandamus should not issue, commanding him to carry into execution the decree of the court below.

Upon cause shown by the judge that, having taken what he considered to be good, and sufficient security, the cause was appealed to this Court, which removed it from his jurisdiction, and that he had no power to make an order in the case, this Court will order a peremptory mandamus.

But as the security given was sufficient to bring the case before this Court by appeal, a motion to dismiss the appeal must be overruled.

This appeal was before the Court at the last term, and is reported in 57 U. S. 16 How. 135.

It will be seen by a reference to that case that the Court expressed its opinion, that where there was a decree in chancery from which an appeal was taken, in order to make that appeal operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law.

It will also be seen that a motion to dismiss the appeal could not be entertained because the time had not expired within which the appellant was allowed to file the record, nor could a motion be entertained to award a procedendo. chanrobles.com-red

Page 58 U. S. 276

It will also be seen, p. 57 U. S. 141, that the Court suggested a mode of relief by moving for a rule on the district judge to show cause why a mandamus should not be issued.

Taking the case up at this period of its history, it now becomes necessary to trace the subsequent proceedings.

On the 12th of May, 1854, the Union Bank of Louisiana filed the following petition:

"To the Honorable the Justices of the Supreme Court of the United States:"

"The petition of the Union Bank of Louisiana, a corporation duly established by the laws of the State of Louisiana, respectfully showeth:"

"That on the 5th day of March, 1848, your petitioner filed its bill in the District Court of the United States for the District of Texas, against Josiah S. Stafford and Jeannette Kirkland Stafford, his wife, whereby your petitioner sought to obtain a foreclosure of a certain mortgage, held by it on certain negro slaves, then in the possession of the said defendants, but at the hearing in the said court and by the decree thereof the said bill was dismissed. And your petitioner further showeth that from the decree of the said court directing the dismissal of the said bill an appeal was prayed by your petitioner to this Court, and at the December term, 1851, the said decree was reversed and the cause remanded to the said district court with directions to that court to enter a decree in favor of your petitioner, and accordingly such a decree was in fact rendered by the said district court on the 25th of February, 1854, whereby it was in substance directed that the sums accruing from the hire of the mortgaged slaves, while in the custody of the receiver, pendente lite, amounting to $25,379.39, should be paid by the receiver to the complainant and credited on the total amount found to be due by the defendants, and that in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13, on the 1st day of July, 1854, they should be foreclosed of their equity of redemption, and the marshal should seize and sell the mortgaged slaves at public auction, on the third day of the same month, or as soon thereafter as may be, after giving three months' notice, by advertisement, of the time, place, and terms of sale, and should pay to the complainant, your petitioner, out of the proceeds of such sale, the aforesaid sum of $39,877.13, in satisfaction of the debt secured by the said mortgage. And your petitioner further showeth that although it appeared by the said decree that the total amount due thereby to your petitioner was the sum of $65,256.52, yet the said district court thereafter, to-wit, on the 7th day of March, 1854, in violation of the statutes of the United States

Page 58 U. S. 277

and of the right of your petitioner, allowed the said defendants to take an appeal from the said decree to this Court, which should act as a supersedeas, upon their giving a bond in the penal sum of $10,000 alone, conditioned that they prosecuted their said appeal with effect and answer all damages and costs if they fail to make their plea good, and when the said defendants had, on the day aforesaid, tendered such a bond, with certain sureties thereon named, the said district court ordered, notwithstanding the objections interposed on the part of your petitioner, that the bond of appeal so taken and filed operates as a supersedeas to the decree of the said court hereinbefore set forth, all of which will fully appear by reference to the transcript of the record of the said cause, brought up to this Court on the first appeal, and to the transcript of the record of the subsequent proceedings in the said cause, filed in this Court in support of a motion made, on the part of your petitioner, at the present term, to dismiss the said second appeal, taken as aforesaid, by the said defendants."

"And your petitioner further showeth that the action of the said district court in ordering it to be entered that the appeal bond so taken operates as a supersedeas and stays the execution of the said decree, is contrary to law, and oppressive to your petitioner; that unless this Court interpose, a delay of one or two years must intervene before the decree can be carried into effect; and, meanwhile, the security for the final payment of the amount decreed to be due and payable to your petitioner is wholly insufficient and much less than the amount required by law, and that your petitioner has no remedy save in the present application to this Court."

"Wherefore your petitioner humbly prayeth, that Your Honors would be pleased to order that a writ of mandamus, in due form, be at once issued from this Court, returnable to the first Friday of the next term thereof, commanding and requiring the Honorable John C. Watrous, Judge of the District Court of the United States for the District of Texas, to cause the decree, so as aforesaid rendered by the said court on the 25th day of February, 1854, to be at once carried into execution according to the terms thereof notwithstanding the appeal so taken by the said defendants, or, on failure thereof, to show to this Court, on the said return day, why the same has not been done."

"And in support of this petition, your petitioner refers to the transcripts hereinbefore mentioned and to the records of this Court in relation to the said cause, and will ever pray &c."

"R. S. COXE"

"W. G. HALE"

"For the Union Bank of Louisiana"

"May 12, 1854 "

Page 58 U. S. 278

And on the same day, the counsel made the following motion:

"

I

"Ex parte: The Union Bank of Louisiana."

"The counsel for the Union Bank of Louisiana, in accordance with the prayer of the petition herewith filed on behalf of the said bank, now move the Court to order that a writ of mandamus, in due form, do at once issue from this Court, returnable to the first Friday of the next term thereof, commanding the Hon. John C. Watrous, Judge of the District Court of the United States for the District of Texas to cause the decree rendered by the said district court on the twenty-fifth day of February, 1854, in a certain cause therein then depending, between the said Union Bank of Louisiana as complainant, and Josiah S. Stafford and Jeanette Kirkland Stafford, his wife, as defendants, to be at once carried into execution according to the terms thereof or, on failure thereof, to show to this Court, on the return day of said writ, why the same has not been done."

"And in case the Court does not think fit to make such order, then the counsel for said Union Bank of Louisiana move the Court to grant a rule on the said district judge requiring him to show cause on the first Friday of the next term of this Court why a peremptory writ of mandamus should not issue for the purpose above stated. And in support of this motion, the counsel refer to the said petition and to the transcripts therein mentioned."

"R. S. COXE"

"W. G. HALE"

"For the Union Bank of Louisiana"

On the 15th of May, 1854, a rule was laid upon the district judge to show cause at the next term why a mandamus should not be issued commanding him to cause the decree entered by the said district judge, on the 25th of February, 1854, between the above parties, to be carried into execution according to the terms thereof.

In this position the case stood at the opening of the present term.

The district judge showed cause in a return, which is set forth in extenso in the order of this Court, which follows the opinion in this report, and it is therefore unnecessary here to copy that return.

Shortly after the commencement of the term, Mr. Coxe moved to dismiss the appeal because the appellants had filed chanrobles.com-red

Page 58 U. S. 279

no sufficient bonds, and also that the rule upon the district judge should be made absolute and a peremptory mandamus awarded.

The first motion was overruled, and the second granted.