10 D.C. 71 (D.C.D.C. 1879), 16,631, Kirk v. Cole

Docket NºLAW.— 16,631, 16,781.
Citation10 D.C. 71
Party NameGEORGE E. KIRK v. HENRIETTA H. COLE.
CourtSupreme Court of District of Columbia

Page 71

10 D.C. 71 (D.C.D.C. 1879)

GEORGE E. KIRK

v.

HENRIETTA H. COLE.

LAW.— Nos. 16,631, 16,781.

Supreme Court, District of Columbia.

September Term, 1879

I. This court will compel a justice of the peace, by mandamus, to issue a writ of restitution in execution of a judgment which he has rendered in a landlord and tenant proceeding, where no undertaking has been given by the defendant within the time prescribed by the rules of court in case of appeal.

II. An appeal from a judgment rendered by a justice of the peace will be dismissed where no undertaking was given, as required by rules of court, within ten days after the rendition of the judgment; and the magistrate has no discretion which will authorize him to allow an appeal after the expiration of the prescribed period to which he must conform his practice in all cases of appeal.

STATEMENT OF THE CASE AND DECISION.

This was an action to recover possession of certain premises under the provisions of the act of Congress to regulate proceedings between landlords and tenants, instituted before B. W. Ferguson, a justice of the peace in and for the District of Columbia. Judgment was rendered therein in favor of the plaintiff on the 30th day of September, 1876, and on the 10th of October following, a writ of restitution was issued by the justice to execute the aforesaid judgment. On the 14th day of October, the defendant, Henrietta H. Cole, filed an appeal bond, and the writ was returned unexecuted. October 17, the plaintiff's attorney filed a written order with the justice, directing him to issue an alias writ of restitution, which he declined to do by reason of the appeal in the case which he had allowed, and the taking of a satisfactory appeal bond, upon which the papers in the case had been forwarded to the clerk of this court. On the 18th of October the plaintiff, upon his petition, procured a writ of mandamus from the chief justice of this court requiring the said justice of the peace to forthwith issue a writ of restitution in execution of the judgment aforesaid. A motion to quash this writ of mandamus was made at the special term and overruled, and an appeal was taken to the general term. The plaintiff also made a motion at the special term to dismiss the appeal taken by the defendant from the judgment of the justice of the peace to this court as aforesaid, for the following reasons, to wit: That the appeal bond was not filed within ten days after the...

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