Ex parte Cudd

• Decision Date: 13 January 1916
• Docket Number: 6 Div. 122
• Citation: 70 So. 721,195 Ala. 80
• Parties: Ex parte CUDD.
• Court: Alabama Supreme Court

70 So. 721

195 Ala. 80

Ex parte CUDD.

6 Div. 122

Supreme Court of Alabama

January 13, 1916

Original petition by J.J. Cudd for a writ of mandamus or other appropriate writ. Writ granted.

E.W Godbey, of Decatur, for petitioner.

James E. Horton, Jr., of Athens, pro se.

GARDNER J.

The petition in this case shows that one V.A. Reynolds filed a bill against J.J. Cudd (the petitioner here) and L.R Reynolds, the husband of the complainant, seeking the cancellation of a certain mortgage executed by complainant and her husband to said Cudd. The complainant was successful and decree was rendered canceling the mortgage; respondent Cudd being taxed with the costs of the suit. The decree required the performance of no act by the respondent. Execution for costs was issued under said decree against Cudd, who perfected his appeal to this court by giving proper security for costs, duly approved, and which said appeal is pending and undetermined and at the time of the prosecution of this petition had not been submitted. Respondent Cudd petitioned the chancery court, wherein the decree was rendered, in term time, to supersede the execution of costs pending appeal, a copy of which petition is made an exhibit here, and the facts of which were not disputed. The chancellor entered an order denying the petition and directing that execution be issued for the costs, which execution is now in the hands of the sheriff. Said Cudd now petitions this court for a writ of mandamus, or other appropriate writ, for the setting aside of the order denying the petition and refusing an order to grant same, or such further orders as may be necessary to obtain a stay of proceedings until the final decision of said cause in this court. The facts alleged in the petition are not denied in the answer of the chancellor filed thereto, but he justifies his ruling upon his conception of the law that he has no right to stay the execution of costs because petitioner has failed to execute a supersedeas bond as required by law.

The sole question for determination here, therefore, is whether or not a supersedeas bond is required to stay an execution for costs when the decree rendered requires the performance of no act by the respondent; nor provides for the recovery of any property to the complainant; or of any judgment for money; or other such decree as mentioned in sections 2873-2875 of the Code of 1907. That, as a general proposition, the appeal in this cause removed the case wholly and absolutely into this court, so far as the equities of same were involved, was fully recognized in Ex parte Hood 107 Ala. 520. 18 So. 176.

"At common law a writ of error operated, by its own inherent force, as a supersedeas of all proceedings on the judgment in the court below from the time it was sued out and notice of it was served on the adverse party. But, as writs of error came to be sued out for the purpose of delay, various acts of Parliament were passed requiring security in certain cases in order that the writ might operate as a supersedeas. *** Formerly, in England, an appeal to the House of Lords had per se the effect to stay proceedings in chancery pending the appeal." 3 Cor.Jur. p. 1272.

To the same effect is the language of this court in Montgomery Gaslight Co. v. Merrick, 61 Ala. 534, where it is said:

"At common law, a writ of error (and an appeal under the statute is a substitute for the common-law writ of error) was a supersedeas of execution from the time of its allowance. The court issuing it would, if it was not apparent the writ was sued out merely for delay, stay any proceeding on the judgment, during its pendency."

And in Northern v. Hanners, 121 Ala. 587, 25 So. 817, 77 Am.St.Rep. 74,...