Green v. Van Buskerk

Citation18 L.Ed. 245,3 Wall. 448,70 U.S. 448
Decision Date01 December 1865
CourtUnited States Supreme Court

THIS was a motion made by Mr. A. J. Parker, in behalf of Green, plaintiff in error, for a supersedeas to stay execution upon a judgment of the Supreme Court of the State of New York.

It appeared that a judgment was entered by the Supreme Court in favor of Van Buskerk, the defendant in error here, which was affirmed in the Court of Appeals, the highest court of law and equity of the State of New York, on the 22d of December, 1865. Upon this affirmance the record was sent to the Supreme Court, with an order directing that court to enter judgment accordingly.

In pursuance of this order, judgment was entered in the Supreme Court, on the 16th of February, 1866, and on the 20th February a writ of error, which had been duly allowed, to this court, was lodged, together with the proper bond and all other papers in due form to stay proceedings, in the clerk's office of the Supreme Court of New York. On the 28th of February, 1866, the attorney for the plaintiffs below directed execution to issue upon the judgment; to prevent which the present motion for supersedeas was made.

The reader will remember, of course, that the Judiciary Act of 1789, by its 25th section, gives a right of re-examination by this court of the judgments of State courts, when 'a final judgment or decree in any suit, in the highest court of law or equity in a State,' involves certain questions, and the decision on them is given in a particular way: and will recall, further, that, by its 23d section, a writ of error is a supersedeas only where the writ is served by a copy thereof being lodged for the adverse party in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of; 'until the expiration of which term of ten days,' says the section, 'executions shall not issue.'

Mr. J. B. Gale, against the motion: A party's right to bring a State court judgment here depends upon the 25th section of the Judiciary Act; and that authorizes a review only of a judgment in the highest court of a State in which a decision could be had.

Now, in New York, the highest court of the State is confessedly the Court of Appeals; the Supreme Court, notwithstanding its title, being inferior to it. In this case, the judgment 'complained of' is the judgment of the Court of Appeals. That judgment was given on the 22d of December, 1865. No writ of error was lodged anywhere below until the 20th of February. Of...

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12 cases
  • Travelers Insurance Company v. Fields, 71-1164.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Diciembre 1971
    ......The involuntary transfer of chattels at any rate is so recognized. Green v. Van Buskirk, 7 Wall. 139, 70 U.S. 448 19 L.Ed. 109; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, 23 L.Ed. 1003; Clark v. Williard, 292 ......
  • Galbraith v. Kline
    • United States
    • U.S. District Court — Panama Canal Zone
    • 26 Junio 1925
    ......Tompkins C. C. 58 F. 672; Van Wyck v. Read C. C. 43 F. 716; Atherton Co. v. Ives C. C. 20 F. 894; Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 245; In re Nelson D. C. 149 F. 590; Schuler v. Israel C. C. 27 F. 851; affirmed 120 U. S. 506, 7 S. Ct. 648, ......
  • Crooker v. Knudsen
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 1 Mayo 1916
    ...... on some severable phase thereof, nor until it is entered in a. court from which execution can issue. Green v. Van. Buskirk, 3 Wall. 448, 18 L.Ed. 245; Bostwick v. Brinkerhoff, 106 U.S. 3, 1 Sup.Ct. 15, 27 L.Ed. 73;. St. L., I.M. & S.R. Co. v. Southern ......
  • Wright v. Taft-Peirce Mfg. Co., 1584.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 13 Febrero 1923
    ...141 U.S. 661, 12 Sup.Ct. 118, 35 L.Ed. 893; National Life Ins. Co. v. Scheffer, 131 U.S. Appendix, cciii, 26 L.Ed. 1110; Green v. Van Buskirk, 3 Wall. 448, 18 L.Ed. 245; Union Mutual Life Ins. Co. v. Kirchoff, 160 374, 16 Sup.Ct. 318, 40 L.Ed. 461; La Bourgogne, 210 U.S. 95, 112, 113, 28 Su......
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