Ex parte Humes et al. riginal

• Decision Date: 24 April 1893
• Docket Number: No. 20,O,20
• Citation: 149 U.S. 192,37 L.Ed. 698,13 S.Ct. 836
• Parties: Ex parte HUMES et al. riginal
• Court: U.S. Supreme Court

149 U.S. 192

13 S.Ct. 836

37 L.Ed. 698

Ex parte HUMES et al.

No. 20, Original.

April 24, 1893.

W. Hallett Phillips, for petitioners.

Geo. T. White and Wm. Richardson, for respondent.

Mr. Chief Justice FULLER delivered the opinion of the court.

The Third National Bank of Chattanooga recovered a money judgment in the circuit court of the United States for the northern district of Alabama against Eugene C Gordon, April 14, 1888, to reverse which Gordon sued out a writ of error from this court, giving a supersedeas bond in the usual form, with Milton Humes and C. C. Harris as sureties thereon. March 21, 1892, the judgment of the circuit court was affirmed by this court, and the mandate was thereafterwards issued in the usual form. 12 Sup. Ct. Rep. 657, 144 U. S. 97. On the 12th of October, 1892, at a regular term of the circuit court, the bank made a motion upon notice for judgment against the defendant Gordon and his sureties. To this motion Humes and Harris appeared and filed a demurrer, which was overruled, and they then proposed to interpose a plea of partial payment, which the court refused to permit to be filed, or to hear any evidence upon that subject; whereupon, without any other evidence than the supersedeas bond and the mandate of this court, the circuit court rendered judgment against Gordon, Humes, and Harris for the principal, interest, and costs, as shown in the original judgment. To this judgment, Humes and Harris prosecuted a writ of error from the circuit court of appeals, which dismissed the writ (54 Fed. Rep. 917) because Gordon did not join in it, and there was no summons and severance, or equivalent proceeding. Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. Rep. 39; Mason v. U. S., 136 U. S. 581, 10 Sup. Ct. Rep. 1062.

Thereupon Humes and Harris applied to this court for leave to file a petition for writ of mandamus, and for a rule requiring the judge of the circuit court to show cause why he should not be commanded to execute the mandate of this court by vacating the judgment in so far as it was rendered and directed execution against petitioners, and to enter judgment and direct execution against the defendant Gordon, without more. Leave was granted to file the petition, and a rule was entered thereon accordingly, to which return has been duly made. The judgment rendered by the circuit court recites that it appears to the satisfaction of the court that judgment was recovered against Gordon, a writ of error sued out, and a...