The C., R. I. & P. R. Co. v. Grinnell

• Decision Date: 17 December 1879
• Citation: 3 N.W. 819,53 Iowa 55
• Parties: THE C., R. I. & P. R. CO. v. GRINNELL, AND TWENTY-THREE OTHER CASES
• Court: Iowa Supreme Court

3 N.W. 819

53 Iowa 55

THE C., R. I. & P. R. CO. v. GRINNELL, AND TWENTY-THREE OTHER CASES

Supreme Court of Iowa, Des Moines

December 17, 1879

Motion of plaintiff sustained, and clerk issued a procedendo.

OPINION

PER CURIAM.

Plaintiff files its motion in these cases for an order directing the clerk to issue writs of possession or a procedendo in each case. The facts upon which the motion is based are these: The judgments of the court below in these cases were affirmed by this court June 14, 1879, and an order made that a procedendo issue in each case. Writs of error were allowed in the respective cases, and citations as required by the Statutes of the United States were signed by the chief justice of this court August 5, 1879, and filed with supersedeas bonds August 14, 1874, in the office of the clerk of this court. Writs of error were issued, and lodged with the clerk of this court September 12, 1879.

The plaintiff insists by its motion, and this is the only point relied upon by counsel in their argument, that judgments of this court are not superseded for the reason that the writs of error were not lodged with the clerk of this court within the time prescribed by the statutes of the United States. Upon this ground and no other plaintiff asks that a procedendo be issued in each case.

A writ of error lodged with the clerk of this court, with the security required by the statute, within sixty days from the rendition of judgment, operates as a supersedeas. U.S. Rev. Stat, § 1007. If it is not so lodged within that time, it does not so operate. City of Washington v. Dennison, 73 U.S. 495, 6 Wall. 495, 18 L.Ed. 863; Railroad Co. v. Harris, 74 U.S. 574, 7 Wall. 574, 19 L.Ed. 100.

The judgments not being superseded, the power exists in this court to enforce them by proper process. U.S. Rev. Statutes, § 1007; Code, § 3186; Wallen v. Williams, 11 U.S. 278, 7 Cranch 278, 3 L.Ed. 342.

The motion of plaintiff is sustained, and the clerk will issue in each case a procedendo as provided in the judgment therein.