William Hardeman and Hardeman, Plaintiffs In Error v. Edward Anderson, Defendant

• Decision Date: 01 January 1846
• Parties: WILLIAM HARDEMAN AND D. HARDEMAN, PLAINTIFFS IN ERROR, v. EDWARD ANDERSON, DEFENDANT
• Court: U.S. Supreme Court

45 U.S. 640

4 How. 640

11 L.Ed. 1138

WILLIAM HARDEMAN AND D. HARDEMAN, PLAINTIFFS IN ERROR, v. EDWARD ANDERSON, DEFENDANT.

January Term, 1846

THIS was a writ of error from the Circuit Court of the United States for the Southern District of Mississippi.

At the preceding term of this court, namely, on the 28th of February, 1845,Mr. Howard, on behalf of the defendant in error, moved for leave to file a certificate that a writ of error had been sued out, and for an order to docket and dismiss the case under the forty-third rule of court.

This order was accordingly passed, and at the close of the term, no record having been filed by the plaintiffs in error, the case was dismissed.

At the present term, Mr. Crittenden, counsel for the plaintiffs in error, filed the following affidavit, namely:——

'UNITED STATES OF AMERICA, Southern District of Mississippi.

'This day William Hardeman personally appeared before me, commissioner, &c., for taking affidavits in civil cases, &c., and made oath, that some time during the last summer, and many months

previous to the session of the present term of the Supreme Court of the United States, he applied to the clerk of the Circuit Court of the United States for the Southern District of Mississippi, to know what he should do in relation to the record in the case of Edward Anderson against the said Hardeman and others, on a writ of error from said Circuit Court, and the said clerk then told this affiant that he would prepare and send up to the Supreme Court of the United States the transcript of the record in said cause, and that all affiant would have to do would be to procure sureties for costs of suit in the Supreme Court. Trusting to this, and fully believing that said transcript would be duly sent up by the clerk to the Supreme Court, this affiant applied to Daniel W. Dickenson, a member of Congress, and amply solvent, to become his surety for the costs of the Supreme Court, which he promised to do. The said Dickenson was taken sick, and, as he informed affiant, had written to Joseph H. Peyton and Mr. Rayner, members of Congress, to become the sureties for costs. Affiant has been informed this day for the first time, by his counsel in the Circuit Court, that the transcript of said record had not been forwarded by the clerk as aforesaid. Affiant sends the same accompanying this affidavit, and prays that said record be filed and the case docketed, and if said suit be dismissed, that the same be set aside, the record filed, and the case docketed.

WILL. HARDEMAN.'

'Sworn to and subscribed before me on the 26th day of February, A. D. 1845.

THOS. SHACKELFORD,

United States Commissioner of Affidavits, &c., for the Southern District of Mississippi.'

Mr. Crittenden thereupon submitted the following motion, viz.:——

'HARDEMAN ET AL. v. ANDERSON.

'This case was depending before this court at its last term, upon writ of error operating as a supersedeas, and was then dismissed because the record was not filed. The cause of the failure to file is acounted for and explained in the affidavit now submitted to the court. The affidavit was received here within a few days after the close of the last term, and too late, of course, to make the intended motion to set aside the dismission. Since then, the plaintiffs have sued out another writ of error, and executed another bond, &c., but this not operating, per se, as a supersedeas, the plaintiffs are exposed to execution on the judgment below; they therefore move the court for a supersedeas,' &c.

This motion was sustained by Mr. Crittenden, who contended that the plaintiffs in error had used all reasonable exertion to have the record brought up in time, and referred to the case of Stockton et al. v. Bishop, 2 Howard, 74.

Mr. Howard opposed the motion. It did not appear that all reasonable exertion had been used by the party. The judgment appealed from was given in May, 1840, and the case was not docketed and dismissed until February, 1845. In the mean time, the plaintiff in error appears to have relied upon the clerk of the court below to send the record up. The...