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Western Air Line Construction Co. v. McGillis

127 U.S. 776 Court SCOTUS Decision date 1888-04-16 Docket No. 1283 English

Delivered by Miller J.

Contents

Majority — Miller J.

p. 776
WESTERN AIR LINE CONSTRUCTION COMPANY v. McGILLIS.

Syllabus

ORIGINAL MOTION IN A CAUSE BROUGHT HERE BY WRIT OF ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 1283.
Submitted April 9, 1888.
—Decided April 16, 1888.
The court, for reasons stated in its opinion, denies a motion to vacate a supersedeas orto make an order that the'appeal bond filed in the case does not operate as a supersedeas.
The defendants in error made the following motion:
“ And now come the defendants in error in the above cause, by John S. Cooper, their attorney and counsel, and move the
p. 777
court to vacate the supersedeas in the above cause, or for an order declaring that the appeal bond filed by appellant in said cause does not operate as a supersedeas; because the writ of error was not sued out or served within sixty days after the rendering of the judgment entered and complained of in said cause.
“John S. Cooper,
“ Attorney and Cowisel for Defendants in Error.”
Mr. John 8. Cooper for the motion.
Mr. E. Walker opposing.

This is a motion to vacate what is called a supersedeas. The papers show that the writ ivas neither sued out or served within sixty days after the rendition of the judgment which is the subject of the writ of error: It follows as a matter of course that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue, unless it may become necessary from some peculiar circumstances. • The statute declares .that, when within sixty days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, shall operate as a supersedeas. It is a matter of law whether it operates as a supersedeas.

There is no evidence here of any proceeding to collect a debt which has been disregarded. At all events there is no occasion for a supersedeas.

The motion is denied.