Ex parte French
Citation | 25 L.Ed. 529,100 U.S. 1 |
Parties | EX PARTE FRENCH |
Decision Date | 01 October 1879 |
Court | United States Supreme Court |
PETITION for a mandamus against the Circuit Court of the United States for the District of California.
Upon the showing made by French in his petition, it appears that he brought a suit in ejectment in the court below against Lincoln, O'Ness, Onesti, DeSilva, and others, to recover the possession of a large tract of land. On the trial the court found, among other things, that Lincoln was in the separate possession of a specific portion of the tract, and that O'Ness, Onesti, and DeSilva were in the possession of another portion. Judgment was rendered, Oct. 7, 1878, in favor of French against all the defendants jointly for the recovery of the entire tract and the costs of suit, amounting to $959.25; and against Lincoln separately for $330, damages for withholding possession; and against O'Ness, Onesti, and DeSilva for $225, for like cause. Other separate judgments for damages were rendered against the other defendants, the aggregate of all the money judgments being $6,091.
On the 28th of October a writ of error from this court was sued out in the name of all the defendants, and the Circuit Court on the same day made the following order:——
On the following day separate bonds were filed by the defendants named in this order for the designated amounts, and conditioned as required by law for the stay of execution, which were approved and accepted in due form by the circuit judge, and on the 31st of October the following order was made by the Circuit Court:——
'A writ of error having been sued out and perfected by the defendants in said action, and defendant L. M. Lincoln having given the proper bond to operate as a supersedeas as to the judgment against him, and the defendants Onesti, O'Ness, and DeSilva having given a similar bond as to the judgment against them: ordered, that proceedings be stayed as to the moneys recovered against said Lincoln, and as to the sixty acres of land found by the court to be in his possession, as described in the findings in said cause; and also that the proceedings be stayed as to the judgment for damages and costs against said O'Ness, Onesti, and DeSilva, and as to the land found to be in their possession, as described in the findings of the court in this cause; and that a writ of restitution and execution issue as to the remaining defendants, and the remainder of the land recovered in the action.'
Afterwards, French applied to the clerk of the Circuit Court to issue execution against all the defendants, as well those who had filed supersedeas bonds as the others; and this being refused, he moved the court to vacate its order of October 31, and direct the complete execution of the judgment. This also being refused, he now prays 'that a writ of mandamus issue from this court to the Circuit Court, . . . directing said Circuit Court to proceed and completely execute its said judgment, notwithstanding said writ of error and said orders of said Circuit Court.'
Mr. John Reynolds for the petitioner.
Rule 29 of this court, following the requirements of sect. 1000 of the Revised Statutes, provides that in real actions the bond must be for an amount sufficient to secure the sum recovered, and 'just damages for delay,' and costs and interest.
In Stafford v. Union Bank of Louisiana (17 How. 275), this court held that, twhen the bond was not equal to the whole amount recovered, the writ did not operate as a supersedeas, and that a writ of mandamus would be awarded directing the Circuit Court to execute the judgment.
It is no answer to say that the judgment in question is in effect a separate one against each defendant, for the land in his possession, and for damages for his...
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