In the Matter of Josiah S. Stafford and Jeannette Kirkland, His Wife, Appellants, v. the Union Bank of Louisiana

• Citation: 58 U.S. 275,15 L.Ed. 101,17 How. 275
• Parties: IN THE MATTER OF JOSIAH S. STAFFORD AND JEANNETTE KIRKLAND, HIS WIFE, APPELLANTS, v. THE UNION BANK OF LOUISIANA
• Decision Date: 01 December 1854
• Court: United States Supreme Court

58 U.S. 275

17 How. 275

15 L.Ed. 101

IN THE MATTER OF JOSIAH S. STAFFORD AND JEANNETTE

KIRKLAND, HIS WIFE, APPELLANTS,

v. THE UNION BANK OF LOUISIANA.

December Term, 1854

THIS was an appeal from the district court of the United States for the State of Texas.

It was before the court at the last term, and is reported in 16 How. 135.

It will be seen, by a reference to that case, that the court expressed its opinion, that where there was a decree in chancery from which an appeal was taken, in order to make that appeal operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law.

It will also be seen, that a motion to dismiss the appeal could not be entertained, because the time had not expired within which the appellant was allowed to file the record; nor could a motion be entertained to award a procedendo.

It will also be seen, (p. 141,) that the court suggested a mode of relief, by moving for a rule on the district judge, to show cause why a mandamus should not be issued.

Taking the case up at this period of its history it now becomes necessary to trace the subsequent proceedings.

On the 12th of May, 1854, the Union Bank of Louisiana filed the following petition:——

'To the honorable the justices of the supreme court of the United States:——

'The petition of the Union Bank of Louisiana, a corporation duly established by the laws of the State of Louisiana, respectfully showeth: That on the 5th day of March, 1848, your petitioner filed its bill in the district court of the United States for the district of Texas, against Josiah S. Stafford and Jeannette Kirkland Stafford, his wife, whereby your petitioner sought to obtain a foreclosure of a certain mortgage, held by it on certain negro slaves, then in the possession of the said defendants; but, at the hearing in the said court, and by the decree thereof, the said bill was dismissed. And your petitioner further showeth, that from the decree of the said court, directing the dismissal of the said bill, an appeal was prayed by your petitioner to this court; and, at the December term, 1851, the said decree was reversed, and the cause remanded to the said district court, with directions to that court to enter a decree in favor of your petitioner; and, accordingly, such a decree was in fact rendered by the said district court, on the 25th of February, 1854, whereby it was in substance directed that the sums accruing from the hire of the mortgaged slaves, while in the custody of the receiver, pendente lite, amounting to $25,379.39, should be paid by the receiver to the complainant, and credited on the total amount found to be due by the defendants, and that, in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13, on the 1st day of July, 1854, they should be foreclosed of their equity of redemption, and the marshal should seize and sell the mortgaged slaves at public auction, on the third day of the same month, or as soon thereafter as may be, after giving three months' notice, by advertisement, of the time, place, and terms of sale, and should pay to the complainant, your petitioner, out of the proceeds of such sale, the aforesaid sum of $39,877.13, in satisfaction of the debt secured by the said mortgage. And your petitioner further showeth, that although it appeared, by the said decree, that the total amount due thereby to your petitioner was the sum of $65,256.52, yet the said district court thereafter, to wit, on the 7th day of March, 1854, in violation of the statutes of the United States,

and of the right of your petitioner, allowed the said defendants to take an appeal from the said decree to this court, which should act as a supersedeas, upon their giving a bond in the penal sum of $10,000 alone, conditioned that they prosecuted their said appeal with effect, and answer all damages and costs if they fail to make their plea good; and when the said defendants had, on the day aforesaid, tendered such a bond, with certain sureties thereon named, the said district court ordered, notwithstanding the objections interposed on the part of your petitioner, that the bond of appeal, so taken and filed, operates as a supersedeas to the decree of the said court, hereinbefore set forth; all of which will fully appear by reference to the transcript of the record of the said cause, brought up to this court on the first appeal, and to the transcript of the record of the subsequent proceedings in the said cause, filed in this court in support of a motion made, on the part of your petitioner, at the present term, to dismiss the said second appeal, taken as aforesaid, by the said defendants.

'And your petitioner further showeth, that the action of the said district court, in ordering it to be entered that the appeal bond so taken operates as a supersedeas and stays the execution of the said decree, is contrary to law, and oppressive to your petitioner; that, unless this court interpose, a delay of one or two years must intervene before the decree can be carried into effect; and, meanwhile, the security for the final payment of the amount decreed to be due and payable to your petitioner is wholly insufficient and much less than the amount required by law, and that your petitioner has no remedy save in the present application to this court.

'Wherefore your petitioner humbly prayeth, that your honors would be pleased to order that a writ of mandamus, in due form, be at once issued from this court, returnable to the first Friday of the next term thereof, commanding and requiring the Honorable John C. Watrous, judge of the district court of the United States for the district of Texas, to cause the decree, so as aforesaid rendered by the said court, on the 25th day of February, 1854, to be at once carried into execution, according to the terms thereof, notwithstanding the appeal so taken by the said defendants, or, on failure thereof, to show to this court, on the said return day, why the same has not been done.

'And in support of this petition, your petitioner refers to the transcripts hereinbefore mentioned, and to the records of this court in relation to the said cause, and will ever pray, &c.

'R. S. COXE,

'W. G. HALE,

'For the Union Bank of Louisiana.'

May 12, 1854.

And, on the same day, the counsel made the following motion:

In the supreme court of the United States, December Term, 1853.

Ex parte. The Union Bank of...