Draper v. Davis

• Decision Date: 01 October 1880
• Parties: DRAPER v. DAVIS
• Court: U.S. Supreme Court

102 U.S. 370

102 U.S. 370

26 L.Ed. 121

DRAPER v. DAVIS.

October Term, 1880

APPEAL from the Supreme Court of the District of Columbia.

Mr. William A. Meloy moved for a writ of supersedeas.

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

The final decree in this cause was rendered April 30, 1878. An order was entered, May 7, on the minutes of the court below, sitting in general term, allowing an appeal to this court, but no security was then taken, either for costs or to obtain a supersedeas. On the 29th of June, being the sixtieth day after the rendition of the decree, a bond with sureties in the penal sum of $1,000, conditioned according to law for a supersedeas, was approved by one of the justices of the court below, and filed with the clerk. There is no allegation that the approval of this bond was procured by fraud. On the same day the same justice signed a citation, which was served July 8. The taking of this security was not the act of the court, but of the justice. On the twentieth day of that month, the same justice, being satisfied that the bond he had taken and approved was 'insufficient and inadequate security,' 'ordered that the appellant, within twenty days, . . . file an additional bond in the penalty of $3,000, with good and sufficient surety to be duly approved, and upon such notice as is required under rule 116 of this [the Supreme Court of the district] court.' Within the time required by this order, the appellant presented to the justice for approval an additional bond for the prescribed amount; but it does not appear that it was ever accepted. The appellant fearing, as he alleges, that the court below will proceed to carry its decree into effect pending this appeal, now asks that a writ of supersedeas may issue to stay any such proceeding.

When the original bond of $1,000 was accepted by the justice and the citation signed, an appeal was allowed and security taken, which operated as a supersedeas. That transferred the jurisdiction of the suit appealed to this court. As this allowance was the act of the justice of the court and not of the court itself, no such question is presented as was decided in Goddard v. Ordway (101 U. S. 745), where we held that if the allowance was the judicial act of the court in term time, it might, like any other order in the suit, be set aside on proper showing during the term. The power of the justice over the appeal and the security, in the absence of fraud, was exhausted when he took...