Logan v. Goodwin

• Citation: 101 F. 654
• Decision Date: 13 March 1900
• Docket Number: 1,387.
• Parties: LOGAN v. GOODWIN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

101 F. 654

LOGAN v. GOODWIN et al.

No. 1,387.

United States Court of Appeals, Eighth Circuit.

March 13, 1900

W. C Perry, for plaintiff in error.

Edwin A. Austin, for defendants in error.

Before THAYER, Circuit Judge, and ADAMS, District Judge.

PER CURIAM.

In this case two motions have been filed; one to dismiss the writ of error, and the other to vacate the supersedeas heretofore obtained by the giving of a supersedeas bond. By the transcript of the record heretofore lodged in this court the following facts are disclosed: On April 23, 1897, F. G Logan, the plaintiff in error, brought a suit by attachment against A. G. Goodwin and W. L. Chamberlain, and against L Goodwin, the wife of A. G. Goodwin, and against Grace Chamberlain, the wife of W. L. Chamberlain. Process of garnishment was issued in said suit against D. W. Mulvane requiring him to appear and answer whether he was indebted to or had in his possession or under his control any property real or personal, belonging to the defendants in said suit. Thereafter the garnishee appeared, and answered, in substance, that he was in no manner indebted to any of the defendants, unless it was by reason of his having $2,000 in his possession at the time process of garnishment was served, which sum was obtained by him from the Bank of Topeka in payment of a certificate of deposit that was issued by said bank to the defendant I. Goodwin. On June 9, 1899, a final judgment was rendered in the attachment suit against the male defendants, to wit, A. G. Goodwin and W. L. Chamberlain, for the sum of $3,991.21, and in favor of the female defendants, that is to say, in favor of I. Goodwin and Grace Chamberlain, who were adjudged to go hence without day, and recover their costs from the plaintiff. Thereafter a controversy appears to have arisen concerning the question whether the plaintiff in the attachment suit had served a notice on Mulvane, the garnishee, that he had elected to take issue with him on his answer as respects his indebtedness to A. G. Goodwin, one of the defendants in the attachment suit. The trial court seems to have decided that no such notice had been served on the garnishee, and that by reason of that fact the garnishee's answer must be taken as true. It therefore ordered that the answer of the garnishee stand as conclusive of the facts therein stated, that the garnishee pay over the money in his hands as disclosed by his answer to the said I. Goodwin, and that the plaintiff pay the costs of the garnishment proceedings. This order or judgment was entered of record on August 30, 1899. To reverse the last-mentioned order a writ of error was sued out on January 9, 1900, and in connection therewith a bond was executed by the plaintiff in error in the penal sum of $3,000, which was approved by one of the judges of this court, and ordered to operate as a supersedeas. The motion to vacate the supersedeas is doubtless well taken. In Kitchen v. Randolph, 93 U.S. 86, 23 L.Ed. 810, it was held by the supreme court (construing section 1007 of the Revised Statutes) that, unless an appeal is perfected, or a writ of error sued out and served, within 60 days, Sundays exclusive, after the rendition of the decree or judgment complained of, it is not within the power of a justice of the supreme court to allow a supersedeas. The same rule applies, we think, to appeals taken to and writs of error issued by the circuit courts of appeals by virtue of section 11 of the act creating those courts. Supp. Rev. St. p. 905. That section contains the following provision:

'All provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge of the circuit courts of appeals in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the condition of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively.'

This provision of the act ...