New England R. Co. v. Hyde

• Decision Date: 06 April 1900
• Docket Number: 322,323.
• Citation: 101 F. 397
• Parties: NEW ENGLAND R.CO. v. HYDE.
• Court: U.S. Court of Appeals — First Circuit

101 F. 397

NEW ENGLAND R.CO. v. HYDE.

Nos. 322, 323.

United States Court of Appeals, First Circuit.

April 6, 1900

Charles F. Choate, Jr. (Frank A. Farnham, on the brief), for petitioner, and for the motion.

Daniel G. Perkins, opposed.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

The motion of the plaintiff in error to this court in No. 323 for a supersedeas, and its petition in No. 322, for a mandamus to the circuit court to compel the granting of supersedeas, may be considered together.

The writ of error was not allowed or served within 60 days after the entry of judgment in the circuit court. It did not therefore, operate as a supersedeas, since there was a failure to comply with the provisions of section 1007 of the Revised Statutes of the United States. Though a bond was filed within 60 days after judgment, it was not presented for approval, and was not approved, within that time, nor has it since been approved. After the expiration of 60 days application was made to the circuit judge for approval of the bond, and for an order superseding the judgment, whereupon the following order was entered: 'Denied, because at the present time neither the circuit court, nor any judge thereof, has power to allow a supersedeas. ' We think it clear that this ruling was correct. Kitchen v Randolph, 93 U.S. 86, 23 L.Ed. 810; Sage v. Railroad Co., 93 U.S. 417, 23 L.Ed. 933. It follows that the petition for mandamus is without substantial merit, even if we disregard the fact that it was filed before the entry of the writ of error in this court.

After the expiration of 60 days, and within 6 months from the date of judgment, a writ of error was properly issued and served and there is now pending in this court a proceeding for a review of the judgment of the circuit court. The defendant below, now plaintiff in error, in support of the motion to this court for a supersedeas, contends that, as a writ of error may be sued out lawfully at any time within 6 months, and as by section 1007 of the Revised Statutes the writ of error itself operates as a supersedeas only when served within 60 days, there must be power in the appellate court to grant supersedeas upon writs of error sued out after 60 days, and within 6 months; for otherwise, it is urged, the right of review which exists after the expiration of 60 days may be a mere barren right, for if the judgment be paid, without security for its repayment, there is danger that the amount cannot be recovered in the event of a reversal of the judgment. It is contended, therefore, that, in order to preserve the substance of a right to proceed by writ of error after 60 days, the appellate court should interpose, and relieve the plaintiff in error from the necessity of paying a judgment before a final decision as to its validity. The plaintiff in error contends that congress intended to permit executions to be superseded in two ways-- First, under section 1007; and, secondly, under the general powers conferred upon this court by sections 11 and 12 of the act of March 3, 1891, establishing United States circuit courts of appeals, and by section 716 of the Revised Statutes of the United States. It is true that in many cases the supreme court has declared and exercised its power to grant a supersedeas under proper conditions. Hardeman v. Anderson, 4 How. 640, 11 L.Ed. 1138; Ex parte Milwaukee R.Co., 5 Wall. 188, 18 L.Ed. 676; In re Claasen, 140 U.S. 200, 207, 11 Sup.Ct. 735, 35 L.Ed. 409; Sage v. Railroad Co., 96 U.S. 712, 24 L.Ed. 641; Peugh v. Davis, 110 U.S. 227, 4 Sup.Ct. 17, 28 L.Ed. 127; Hudson v. Parker, 156 U.S. 277, 283, 15 Sup.Ct. 450, 39 L.Ed. 424; Jerome v. McCarter, 21 Wall. 17, 31, 22 L.Ed. 515. We should have no doubt of the power of this court to grant supersedeas, as an appropriate mode of relieving a petitioner from the consequences of a failure or refusal of the court below to do that which he had properly sought, and which should have been done by the court or judge in furtherance of the appeal. But cases in which the supreme court has granted a supersedeas on the ground that the petitioner was legally entitled thereto, and had been deprived of his legal rights through error of the lower court, are not in point. Our present question is whether the appellate court will grant supersedeas where there has been a failure by the petitioner to take the steps prescribed by statute for giving to the writ of error itself the effect of staying execution, and where there is no fault or error of the court below. Though the exact point decided in Kitchen v. Randolph, 93 U.S. 86, 23 L.Ed. 810, was as to the power of a justice of the supreme court to allow a supersedeas, the opinion contains a valuable historical review of the law pertaining to the general subject, and states that section 1007 of the Revised Statutes expresses the intention of congress to restore the policy of the old law, which had been relaxed by the former statute of 1872 (17 Stat. 198, § 11). The later opinion by the same eminent judge in Sage v. Railroad Co., 93 U.S. 412, 418, 23 L.Ed. 933, states with force the rule of necessity of strict compliance with the statute, and says, 'Time is an essential element in the proceeding, and one which neither the court nor the judges can disregard. ' We think, therefore, that the legal situation presented when this court is urged to grant supersedeas, as an exercise of the general powers enumerated in section 716, Rev.St., by a party who has failed to bring himself within the provisions of section 1007, does not differ from the situation under the former statutes. Under section 14 of the judiciary act of 1789 (1 Stat. 81), the supreme court's powers were similar to those under section 716 of the Revised Statutes. By section 23 of the judiciary act of 1789, it was provided 'that a writ of error as aforesaid 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,' etc. No valid distinction can be based upon the words 'in cases only,' which appear in section 23 of the act of 1789, but not in section 1007, Rev.St. Each of these sections relates to the effect of the writ of error itself as a supersedeas, and neither section in terms imposes any limitation upon the supreme court in the exercise of the general powers conferred by the other sections. The arguments advanced in this case would have been quite as forcible under the previous statutes, and were in fact presented in cases to which hereafter w...