Kitchen v. Randolph

Decision Date01 October 1876
Citation93 U.S. 86,23 L.Ed. 810
CourtU.S. Supreme Court

ON motion to vacate a supersedeas.

This is a motion by the appellee to vacate and set aside an order made by an associate justice of this court, granting the petition of the appellant for a supersedeas directing a stay of all proceedings, under a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania, foreclosing a mortgage on property of the Wilmington and Reading Railroad Company, and ordering a sale of the same.

The bill for the foreclosure and sale was filed by Randolph, as holder of coupon-bonds of that company, secured by a certain deed of trust and mortgage against the company, the trustees named in the deed and two other junior mortgages, and the Baltimore, Philadelphia, and New York Railroad Company, as original defendants.

Subsequently, Kitchen, a bondholder under a junior mortgage of the Wilmington and Reading Railroad Company, was allowed to intervene as a defendant and file an answer.

The case was heard on the bill, the answers of the original defendants, and that of Kitchen; and, on the 6th of June, 1876, the court below entered a decree foreclosing the mortgage as against certain of the property and franchises covered by it, and ordering a sale by the trustees, after due advertisements for three months prior to the day of sale.

The sale was accordingly fixed by due advertisements, as prescribed by the decree, for the 2d of October, 1876.

No appeal from this decree, or any part of it, was prayed in the court below by any of the defendants; but, on the 29th of September, 1876, the appellant filed his petition for the allowance of an appeal and for a supersedeas, both of which were allowed on that day by the associate justice, and a citation addressed to the complainant below, returnable on the first day of the present term of this court, was issued.

The motion was argued by Mr. J. Hubley Ashton for the appellee, and by Mr. Samuel Dickson and Mr. Wayne Mac Veagh for the appellant.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The only question presented by this motion is as to the power of a justice of this court to allow a supersedeas in cases where an appeal was not taken or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the decree or judgment complained of.

The Judiciary Act of 1789 (1 Stat. 84, sect. 22) made provision for a review by this court of judgments and decrees in civil actions and suits in equity in the circuit courts upon writs of error accompanied by a citation to the adverse party, 'signed by a judge of such circuit court or justice of the Supreme Court.' By the same section it was further provided, that 'every justice or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.'

The citation was essential to the validity of the writ, and without it the writ would be quashed. Lloyd v. Alexander, 1 Cranch, 365. The writ brought up the record, and the citation the parties. Cohens v. Virginia, 6 Wheat. 410; Atherton v. Fowler, 91 U. S. 146. As the security was to be given when the citation was signed, there could be no valid writ without the security.

At common law, a writ of error was a supersedeas by implication. Bac. Abr., tit. Supersedeas, D, 4. To avoid the effect of this rule, the act of 1789 (1 Stat. 85, sect. 23) provided that a writ of error 'shall be a supersedeas, and stay execution in cases only where the writ of error 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;' and in cases where a writ of error might be a supersedeas no execution could issue for ten days.

Under this section it was held, in Hogan v. Ross, 11 How. 297, that there was no authority 'to award a supersedeas to stay proceedings on the judgment of an inferior court upon the ground that a writ of error is pending, unless the writ was sued out within ten days after judgment and in conformity with the provisions of the' act; and in Railroad Co. v. Harris, 7 Wall. 575, that the effect of the writ as a supersedeas 'depends upon compliance with the conditions imposed by the act,' and that 'we cannot dispense with that compliance in respect to lodging a copy for the adverse party.'

The stay of proceedings followed as a matter of right from the issue and service of the writ of error, in the manner and within the time prescribed by the act. No special directions as to the security were necessary, because, under the law as it originally stood, security must be given in all cases when the writ was issued, that the plaintiff in error would prosecute his writ to effect, and answer all damages and costs if he failed to make his plea good. It soon became manifest, however, that, in cases where there was to be no supersedeas, security to this extent was unnecessary; and, consequently, in 1794, it was enacted (1 Stat. 404) 'that the security to be required and taken on the signing of a citation on any writ of error, which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error.' After this the form of the security became material, and the supersedeas was made to depend upon the condition of the bond executed at the time of the signing of the citation, as well as upon the prompt issue and service of the writ. Rubber Co. v. Goodyear, 6 Wall. 156; Slaughter-house Cases, 10 Wall. 289, 291.

In 1803 appeals were granted in cases of equity and of admiralty and maritime jurisdiction, and made 'subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.' 2 Stat. 244, sect. 2. It has accordingly been held that an appeal to operate as a supersedeas must be perfected and the security given within ten days after the rendition of the decree. Adams v. Law, 16 How. 148; Hudgkins v. Kemp, 18 id. 535; French v. Shoemaker, 12 Wall. 100; Bigler v. Walker, id. 149. The allowance of the appeal is the equivalent of the writ of error.

It thus appears that, under the statutes which regulated the early practice, a supersedeas could not be obtained except by prompt action and strict compliance with all the requirements of the law. Parties were, however, not unfrequently put to serious inconvenience by so stringent a rule; and, to avoid this, it was enacted in 1872 (17 Stat. 198, sect. 11) 'that any party or person desiring to have any judgment, decree, or order of any district or circuit court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of...

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  • Odbert v. Marquet
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    • November 4, 1909
    ... ... Kemp, 18 How. 530, 15 L.Ed. 511; Railroad v. Harris, ... 7 Wall. 574, 19 L.Ed. 100; Com'rs v ... Gorman, 19 Wall. 661, 22 L.Ed. 226; Kitchen v ... Randolph, 93 U.S. 86, 23 L.Ed. 810; Sage v. Railroad ... Co., 93 U.S. 412, 23 L.Ed. 933; Western Co. v ... McGillis, 127 U.S. 776, 8 ... ...
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    ...In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 738, 35 L.Ed. 409; Hudson v. Parker, 156 U.S. 277, 15 S.Ct. 450, 39 L.Ed. 424; Kitchen v. Randolph, 93 U.S. 86, 23 L.Ed. 810. As there is no constitutional right to an appeal in criminal cases, the court may, within its statutory powers, affix such......
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    • July 19, 1902
    ... ... Rev. St. Secs. 1000, ... 1007; S.Ct. Rule 29 (3 Sup.Ct. xvi); Cir. Ct. App. Rule 13 ... (31 C.C.A. clii, 90 F. clii); Kitchen v. Randolph, ... 93 U.S. 86, 23 L.Ed. 810; Fost. Fed. Prac. Sec. 402 ... If the ... power exists in the court below to grant the ... ...
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