94 U.S. 50 (1877), Doyle v. State Of Wisconsin

Citation:94 U.S. 50, 24 L.Ed. 64
Case Date:January 29, 1877
Court:United States Supreme Court

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94 U.S. 50 (1877)

24 L.Ed. 64




United States Supreme Court.

January 29, 1877


On motion to set aside proceedings in execution of a judgment of the Supreme Court of the State of Wisconsin.

On the fifteenth day of August, 1876, the Supreme Court of Wisconsin rendered a judgment ordering that 'a peremptory writ of mandamus do forthwith issue out of and under the seal of the court, to be directed to the respondent [plaintiff in error], commanding him, and in his absence the assistant secretary of State, forthwith, within twenty-four hours after the service of the writ,' to recall the license given by him to the Continental Insurance Company of the city of New York to do business in that State. The writ was issued and served on the same day, and on the next, Aug. 16, its command was obeyed. On the 10th October, 1876, this writ of error was sued out in due form, and bond given to operate as a supersedeas.

The plaintiff in error now moves that all the proceedings in execution of the judgment within ten days after its rendition

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may be vacated and set aside, and that all further process be stayed.

Argued, for the plaintiff in error, by Mr. William Allen Butler and Mr. I. C. Sloan, who cited Slaughter-House Cases, 10 Wall. 273; Telegraph Co. v.Eyser, 19 id. 419; Board of Commissioners v. Gorman, id. 661; Kitchen v. Randolph, 93 U.S. 86.


Mr. Charles W. Felker, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The claim on the part of the plaintiff in error is, that as a writ of error to operate as a supersedeas might issue from this court to re-examine the judgment of the court below, a writ to carry the judgment into effect could not issue from the State court until the expiration of ten days after the rendition of the judgment. Whether this is so or not depends upon the effect to be given to that clause in sect. 1007, Revised Statutes, which, as amended by the act of Feb. 18, 1875, 18 Stat. part 3, p. 316, reads as follows: 'And in such cases, when a writ of error may be a supersedeas, executions shall not issue until the expiration of ten days;' that is to say, until the expiration of ten days after the rendition of the judgment.

The writ of error issued in this case under sect. 709 of the Revised Statutes, which is a reproduction of sect. 25 of the Judiciary Act...

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